Justice in the Democratic Republic of Congo: Practicing Corruption, Practicing Resistance?

Justice in the Democratic Republic of Congo:Practicing Corruption, Practicing Resistance?

Maritza Felices-Luna

Published online: 11 May 2011� Springer Science+Business Media B.V. 2011

Abstract Based on empirical material collected in the Democratic Republic of Congo

(DRC), this article analyses certain practices labelled as corruption as being part of broader

relations of subjugation and resistance. In the first part it describes how a system of

governance was instituted and maintained during colonialism and dictatorship through

knowledge-power that allowed for relations of domination and exploitation to take place.

Then, it analyses how in a context of democratic transformation, certain practices of

corruption help unveil the complexity of multi-layered power relations mobilising dis-

courses of knowledge as well as practices of subjugation, resistance, oppression and

exploitation. The article concludes by underlining that institutional actors have a vested

interest in maintaining the current system in place as they represent the nodal point of

power-relations.

Introduction

Corruption has been propelled to the forefront of academic and political discourse as

means of explaining what is considered to be the economic and democratic failure of the

developing world (Bukovansky 2006). In a political context where the West has heralded

democracy as the ideal model of government to be adopted by the developing world

(Abrahamsen 2003), corruption has been construed as its nemesis (Olivier de Sardan 1999)

despite the lack of evidence that corruption is an obstacle to democracy or that it produces

the same results in different places (Smith 2007). As a result, underdeveloped countries

have become objects of intervention where scientific discourses have normalised the right

of the North to dictate, adapt and reshape the structures, practices and ways of life of the

South according to Western standards (Abrahamsen 2003).1 This is partly due to the fact

that these discourses consider underdeveloped countries as unwilling or incapable of

M. Felices-Luna (&)Department of Criminology, University of Ottawa, 25 University St, Ottawa K1N-6N5, Canadae-mail: [email protected]

1 Stiglitz (2005) asserts that ex-colonial powers continue to see themselves as those who have knowledgeand who are able to determine what is best for the rest of the world. The newly independent countries need

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Crit Crim (2012) 20:197–209DOI 10.1007/s10612-011-9135-y

combating corruption and therefore in need of international intervention and outside

pressure to tackle this issue (Renton et al. 2007). Under the banner of ‘‘fighting against

corruption’’ (and therefore promoting democracy) certain groups have succeeded in

legitimising their practices as ‘‘good governance’’ (Heidenheimer 2004). Despite the

proclaimed benefits to underdeveloped countries, ‘‘good governance’’ agenda materially

produces processes and forms of political subjugation that help maintain Western hege-

mony (Abrahamsen 2003). In fact, even though corruption is pervasive in advanced

industrialised and democratic states as well as in international organisations, perception in

the West is that the problem lies within the developing world (Bukovansky 2006). A

symbiosis has thus been constituted between underdevelopment and corruption: under-

developed countries are corrupted and corrupted countries are underdeveloped (Assiyi

2008).

Academic discourses on corruption unveil power relations between the developed North

and the underdeveloped South through power-knowledge2 by producing a series of truths:democracy generates good societies; corruption hinders democracy; the West is best suited

to establish the tools to fight corruption given their proven expertise in democracy and

good governance as well as their objective reliance on science. On the other hand devel-

oping countries, particularly African countries, have proven through their own underde-

velopment to be backwards, immoral and in need of assistance. This scientific discourse

perpetuates standing stereotypes of African backwardness by explaining poverty,

inequality and corruption through African cultural traditions (Smith 2007). Despite dis-

courses pointing underdevelopment as a result of political and economic atavism or cul-

tural determinism, the source of underdevelopment is capitalism itself (Ayissi 2008).

Underdevelopment, poverty and inequality in Africa are not the consequence of its

exclusion from global society but result precisely from its inclusion in it (Bayart 2000).

Africa has been looted by the West not only during the pre-colonial and colonial era but

also after independence, through the cold war and into the so called democratic transitions

(Bond 2006) given that aid has been dependent on the implementation of neoliberal pol-

icies (Renton et al. 2007). Hence, underdevelopment can be linked to primitive accumu-

lation3 with corruption being a significant tool4 (Ayissi 2008). Crimes such as corruption

and war committed in relation to capitalism are not the dark side, or negative consequence

of capitalism; it is part of the new globalised world and is an essential element of capi-

talism despite rhetoric of corporate responsibility (Renton et al. 2007). Yet, by presenting

corruption as the cause of democratic and developmental failures, scientific discourse

redirects responsibilities for injustices and problems from the haves to the have nots (from

rich countries to poor countries and from the elite of developing countries to the poor

within those countries) (Smith 2007).

Footnote 1 continuedto trust them and put in place their recommendations which they do but only because of the economic aidassociated with it.2 ‘‘Knowledge stemming from small practices of power and in turn creating new spaces and new constraintsfor power’s operation in the very attempt to realise its own project’’ (May 1993:112).3 The ‘historical process of divorcing the producer from the means of production’, transforming ‘the socialmeans of subsistence and of production into capital’ and ‘the immediate producers into wage labourers’(1967: 714). Primary accumulation also resulted from western capitalism extirpation and exploitation inAfrica and the Americas (Glassman 2006).4 Other tools would be conquest, enslavement/subjugation as well as the use of violence to appropriate theland, resources and labour of the local population.

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Based on a combination of empirical material obtained during two different fieldworks5

carried out in Lubumbashi6 with recent studies on corruption in the DRC, this article

analyses the logic of practices that might be qualified as corruption in a context of dem-

ocratic transition after a colonial and dictatorial mode of governance. By focusing mainly

on the micro-political level7 the article contends that qualifying certain practices as cor-

ruption because they go against the established rules of the system not only discredits and

criminalises those who take part in them but it de-legitimises the basis of their contention.

This qualification re-legitimises the system and the principles of good governance,

ignoring the problems it creates by blaming its ‘‘bad functioning’’ on corruption. Conse-

quently, the solution appears to be to fight corruption and strengthen the current system.

Through the use of science and western models of law and justice, power relations of

domination and exploitation established during the colonial era are continued and

reinforced.

In the following sections the article presents the key concepts used in the analysis;

discusses the implementation of the colonial system as well as its maintenance during the

dictatorship and democratic transition; and analyses practices of corruption in relation to

the Justice System in the DRC.

Conceptualising Corruption and Resistance

Corruption is a complex phenomenon that cannot be seen simply as a free exchange of

goods between independent actors (Gregory 1982) but as a continuum with, at one end of

the spectrum, reciprocity of services between social actors belonging to the same social

network and, at the other end, extortion when social distance is maximal (Sahlins 1974).

Aside from personal gain, other underlying logics of corruption are: the advancement of

state goals (Moran 1998), institutional efficacy, prioritising of personal loyalties over

formal equality (Blundo and Olivier de Sardan 2001), and securing basic services such as

schooling and health (Smith 2007). Furthermore, the term is also used to refer to a series of

morally questionable practices (bribery and graft, fraudulent deals, abuse of occult powers,

medical quackery, cheating in school or deceiving a lover) used to fulfil a diversity of

needs or ambitions (Smith 2007). The diversity of behaviours, actions and dynamics as

5 In 2007 I conducted 12 semi-structured interviews with practitioners working in the area of justice in theDRC. A second fieldwork took place in 2010 using semi-structured interviews which focused on theexperiences and practices of 11 members of the police who worked during the three political periods thathave characterised the DRC since its independence (dictatorship, civil war and democratic transition).During both fieldworks I identified the interviewees by snowball sampling using multiple lines of referral inorder to obtain a contrasted sample in terms of their areas of work. For the first fieldwork I interviewed threelawyers working for human rights NGOs, three activists, two police officers, two judges (one civilian andone military), one prison warden and one lawyer representing the bar. All the interviewees were malebetween the ages of 33 and 46 and ten of them had obtained a law degree. For the second fieldwork Icontrasted in terms of the entry point into the police, thus one interviewee started under the colonial police,two in the provincial police, one in the first national police, one in the republican guard, three in thegendarmerie and three in the second national police. All the interviewees were male; their age varied from40–75 and their level of education varied from high school to university. Both fieldworks were possiblethanks to the CEFOCRIM (Research and training Centre on Criminology and Human Rights) as well as theECOCRIM (School of Criminology, University of Lubumbashi).6 Capital of the province of Katanga, rich in minerals.7 Macro-political level of corruption involves high government and other states, corporations or the nationalelite; micro-political level involves interactions between a superior and a subordinate (professor and student,judge and accused, prison guard and prisoner, doctor and patient) (Ayissi 2008).

Justice in the Democratic Republic of Congo 199

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well as their multiple underlying logics renders corruption an elastic and therefore prob-

lematic term (Heidenheimer 2004). Smith (2007) suggests that researchers should go look

beyond the traditional definition of corruption and study the wide spectrum of practices

associated with it because they ‘‘reveal the complex intertwining of popular morality,

contemporary social processes, and postcolonial statecraft’’ (p. 5).

Inspired by Smith’s (2007) broad definition of corruption, this article explores the

possibility that practices of corruption can be a form of subjugation or resistance as well as

a vehicle of exploitation and domination. Exploitation results from the imposition of

capitalism and neo-liberalism as economic models whereas domination is the actual

exercise of power-knowledge in a way that restricts and limits these possibilities (May

1993). Not all power relations are relations of domination8; it is a matter of the extent and

nature of the restriction it imposes that might be considered acceptable or not by those

experiencing it (May 1993 p. 113). According to Foucault (1980), when opposing

exploitation, it is the proletarians who lead the struggle and define the target and methods

to be used but when the opposition is directed against domination, it is in fact directed

against power and consequently anyone who finds a particular site of power unbearable can

decide on the tactics to be used and the goal to be achieved through their struggle.

Resistance is in fact a refusal to be governed in a particular way or to a particular extent

(Couzenas Hoy 2005) as well as experimenting with new identities (May 1993).

Resistance is not a matter of morality or normativity, it is simply the opposition to a

particular indictment on who to be or how to act. It is about creating alternative ways of

being or acting. Therefore, resistance, whether in terms of activity or of attitude, is con-

textually bound to the social and psychological structures that are being resisted (Couzenas

Hoy 2005). Conceptualising resistance cannot be limited to explicit and intentional modes

of challenging order, given that certain practices might result in it unbeknownst to the

social actors (Comaroff and Comaroff 1991). In some instances, practices challenge social

order in a surreptitious way without necessarily solidifying an ethics of resistance (Rubbers

2007). Hence, resistance needs to be vigilant to its own effects as it is entangled in a

complex set of relations (May 1993). In fact, resistance can be emancipatory or it can be

co-opted by power relations of domination serving its ends instead of hampering it

(Couzenas Hoy 2005). In order to avoid being recuperated by those it opposes to, some

authors contend that resistance needs guidance and purpose from an ethico-political project

(Hall and Winlow 2007). Mumby (2005) disagrees and invites researchers to see beyond

resistance as either:

(a) the practice of a wholly coherent, fully self-aware subject operating from a

pristine, authentic space of resistance or (b) the activities of social actors that are

subsumed within, and ultimately ineffectual against, a larger system of power rela-

tions’’. (…) Transcending this dichotomy enables the study of resistance as a set of

situated discursive and nondiscursive practices that are simultaneously enabling and

constraining, coherent and contradictory, complex and simple, efficacious and

ineffectual. In this context, social actors are neither romanticized nor viewed as

unwitting dupes but rather are seen as engaging in a locally produced, discursive

process of self-formation that is always ongoing, always tension filled. (p. 37)

Mumby (2005) further argues that acts of obedience to power intersect with acts of

resistance to produce complex and contradictory dynamics of control and resistance where

8 Power relations produce and structure possibilities. Oppression results from possibilities becoming rigidand fixed whereas domination is the narrowing and restriction of possibilities (Couzens Hoy 2005).

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they are neither purely one nor the other. Consequently, resistance and control emerge as

mutually constitutive and as a social product of daily life.

Setting the Stage: Domination through Science and Exploitation through Capitalism

For centuries, the local population of Africa had been considered, at least on paper, equal

but different from Europeans (Nkrumah 1969). It was not until theories of race superiority

emerged, supported by scientific discourse, that the indigenous people came to be con-

sidered inferior beings in need of guidance by civilised people (Muiu and Martin 2009).

Science created and transformed the African body into an object of knowledge rendering it

acquiescent to analysis and domination (Abrahamsen 2003). In fact, the economic model

of capitalism imposed by the colonial power required the production of the African docile

body (May 1993). Consequently, the way African identities were constructed was directly

linked to the operation and maintenance of colonial power and capitalism (Abrahamsen

2003).

The idea that science produces truth and the truth it produced were ingrained into the

coloniser and the colonised. In doing so, the power effect of science was to constitute the

minds and bodies of the colonised through the attribution of an identity that informed their

sense of self (Abrahamsen 2003). As a result, Westerners were seen and saw themselves as

superior and civilised, while the local African population was seen and saw itself as

inferior and savage. Knowledge is therefore an effective political tool: it creates under-

standing and self understanding where there was none before and constitutes practices that

create real and effective constraints (May 1993).

Science allowed Europeans to create a hierarchy of knowledge that placed their way of

being and their means of governance as the proper one (Fanon 1961). Consequently,

traditional forms of knowledge and means of governance were de-legitimised and replaced

by the colonial system. This system was not only based on domination through knowledge-

power but also on exploitation through capitalism. In the DRC, colonialism was built

around the expropriation of local natural resources and the exploitation of the local pop-

ulation in order to further the economic and political interests of the King (and later

Belgium) to the detriment of the Congolese (Hochschild 1998).

The pillaging of the DRC through the expropriation of its resources and labour served

the development of western capitalism (Nkrumah 1973).9 Raw materials were exported

into the colonial powers’ industries and the final product was then resold to the colonies at

astronomical prices without any possibility of trading with any other state. Furthermore,

Nkrumah (1973) stresses that the colonial government hampered the economic and

industrial development of the Congo and restricted access to the necessary knowledge.

Consequently, the local elite or evolues10 could not develop into a real bourgeoisie and

developed instead into a petty bourgeoisie working as civil servants, in the service sector or

in liberal professions (Lumumba 1962). Once independence was obtained, this bourgeoisie

was unable to industrialise and develop the country and thus continued the system of

9 The system relied on the use of violence to conquer the territory, force labour and production as well askeep the population under control (Mbaqu 2008). The systematic atrocities committed by Leopold II againstthe local population resulted in the DRC becoming a Belgian colony in 1908 (Hochschild 1998). Thetransition from King Leopold to the Belgian government produced little changes as the same administratorsremained in power (Nkrumah 1969).10 Designates those who have obtained a certain level of education and are considered to be superior to therest of the local population (Lumumba 1962).


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looting national resources and labour for economic benefit (Fanon, 1961). The civil service

and government positions allowed them to control who had access to what, who was

allowed to act and what was allowed to take place and thus corruption became a source of

income for this bourgeoisie who had no other means of making money.

Independence was achieved in 1960 through an agreement between the colonial power

and the colonised elite who guaranteed that the economic and political links would be

maintained (Muiu and Martin 2009). Therefore, since independence, the situation has not

changed and the elite continues selling access to market and services as means of acquiring

wealth (Renton, Seddon and Zeilig, 2007). Consequently, a system of corruption at the

macro-political level has been ingrained in the government and its institutions allowing the

local petty bourgeoisie and western capitalism to thrive and amass fortunes.

Internal quarrelling led to Mobuto’s dictatorship only 5 years after independence. Under

his rule, the main characteristics of colonial administration (despotism, privilegism and

role of intermediaries) were reproduced (Blundo and Le Meur 2009).

Once the colonisers left, the elite simply took over and filled the empty shoes. During

the colony it was the coloniser that took advantage of the system. When they left,

those who replaced them continued to take advantage of the system and used it for

their own benefit.11 (Activist)

The dictatorial and ‘‘democratic’’ regimes of the past 50 years have maintained the

same power relations that were established during colonisation.

The system put in place was well built in, it was fixed and therefore it was difficult to

break away from it and build something new. Any changes made were purely

superficial. (Activist)

Furthermore, according to a policeman ‘‘when the dictatorship takes over the European

mentality is reproduced: you need to oppress. The population needs to be oppressed’’.

Thus, during the 32 year dictatorship, power relations of domination and exploitation

continued to be the basis of social life in the Congo.

‘‘Democratic’’ Transition and Practices of Corruption

Since the transitional government put in place in 200312 the DRC has initiated a series of

institutional changes aiming the consolidation of democracy as well as national and

international legitimacy through a transformation of the mode of governance.

During the transitional period, a new law restructuring the justice system was

drafted. It was part of the negotiations in South Africa that led to the peace accord. It

was supposed to guarantee a certain level of democracy and institutional stability for

the 3rd Republic. (Lawyer)

11 Author’s translation.12 Mobutu’s dictatorship ended in 1997 when Laurent Desire Kabila took over after a swift civil war thatled, a year later, into a new war between Kabila and his old alliance. His son, Joseph Kabila became theleader of the transitional government after his father’s murder. Despite the Sun City accord of 2003, thearmed conflict continues in the North-East part of the country. Kabila was elected president during the 2006elections.

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Transitional countries are advised to build institutions according to a particular model

and to adopt certain laws in exchange for legitimacy and aid.

International development agencies also impose the creation of certain laws. In those

cases, parliament copies what is done elsewhere so that they can hastily pass the law

in order to receive the international aid that has been promised. (Judge)

Despite the fact that accepting the international community guidelines might be a form

of subjugation, it represents a means for international recognition. This recognition allows

the government to enter power relations with other international actors as well as their own

population from a stronger position due to the legitimacy obtained. Yet, it can also be seen

as a mode of resistance to the international community’s attempt to hinder the sovereignty

of the state when the measures taken by the government might in fact appear to be

changing its institutions without actually transforming the mode of governance. In this

regard, the interviewees stated being sceptical of the transformation and considered the

changes made as merely superficial. ‘‘The institutions and the government might have

changed but the people within them have remained the same. If you pay attention you’ll

realize that they are always the same people’’ (Activist). Furthermore, it would appear as if

the new laws and the mechanisms to fight corruption and prevent human rights violations

have been put in place within the justice system only as a chimera. According to the

interviewees, not only does the government turn a blind eye to the practices of corruption

that take place within the justice system, in some instances it actually practices it by using

its personnel to silence political opponents and members of NGOs.

Human rights defenders are usually perceived as obstacles to those in power. They

don’t see our work as means to improve the government so there are always reprisals.

NGO workers are usually arrested, imprisoned, kidnapped and tortured or even

disappeared. (Activist)

In such cases the government or elites corrupt civil servants in order to maintain power

relations of oppression and domination. Corruption is also used by the governments and the

elite as means to protect and maintain an economic system based on the expropriation of

resources and the exploitation of the local population.

The new mining law13 has pre-eminence over any other law, including property law.

If you own land but someone has bought a mining concession, they have pre-

eminence and they can actually kick you out. The state is then supposed to pay an

indemnity but that never gets done. (Activist)

In this case corruption is used by the elite and the government as means of supporting

capitalism.

Corruption Practices by Civil Servants within the Justice System:Subjugation, Oppression, Exploitation and Resistance

Practices of corruption within governmental institutions are varied and can take multiple

forms. Institutional actors can create laws by exploiting the population’s lack of knowledge

in this regards. For example, policemen interviewed described practices of stopping

13 It also applies to employment laws and property laws. These laws do not appear to have been questionedby the international community except for NGOs.


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civilians, fining them and excluding them from the downtown core of Lubumbashi. The

interviewees also described randomly creating sanctions or applying inappropriate sanc-

tions to behaviours that might or might not be against the law. For instance, policemen

might demand a ‘‘millieme’’ (a sexual exchange) as bail (Mutombo 2008).

Another form these practices might take is the criminalisation of non-criminal situations

and the decriminalisation of situations that, according to the law, are criminal. In such

instances, practices of corruption (refusing to prosecute or finding alternative ways to

prosecute) can be seen as practices of resistance to Western laws and their implicit morality.

Because we have followed the Western model, there is no law against witchcraft

which is a reality for us and a serious problem. So either the population goes to see

the ‘‘feticheurs’’ or they go see the police who find a way to deal with it. (…) There is

also the issue of polygamy. There are tribes that recognise polygamy, but it is banned

in the family code. So what do people do? Everyone violates that prohibition because

it is something that we have always known and always done. Even the legislator

might actually practice polygamy. So it is tolerated because the laws do not corre-

spond to the local culture. The system won’t prosecute people even if reported.

(Activist)

Bady Kabuya (2009) concluded that magistrates use the penal system as a shell that

allows them to intervene in situations they deem of their competence or representing a

certain advantage. The same shell is used to avoid intervention in situations where they

consider that doing so would be problematic for themselves, one of the parties or both

parties involved. When they choose to intervene, they begin by formulating the situation in

penal terms, but then act outside the framework of the justice system in order to find a

solution to the problem. Once the solution is found, it is legitimised by reformulating it into

penal discourse. Policemen also transform civil law into penal law and vice-versa (a debt

might be transformed into fraud, and rape into an affront to the family) according to the

context, circumstances and stakes (Mutombo 2008).

In many cases, monetary transactions are extorted either to compensate for an insuffi-

cient salary, for personal gain or in order to obtain the necessary resources to do their job.

These forms of corruption follow the same capitalistic logic underlying corruption at the

macro-political level between high government officials and corporations. Civil servants

act as if the role they play within the system is a resource they own that can be sold (arrest

warrants, court decisions, etc.) either for personal or institutional gain. It also implies that

civilians or service seekers are construed not as citizens to be served but as a source of

income, as someone who can be exploited and whose commodities can be expropriated.

So when a plaintiff comes the OPJ tells them « Sir we have no paper, no pen ». That

means that the plaintiff needs to give a dollar or two. So the plaintiff ends up

subsidising the institution and providing for the agent: « Ok here is a car, or here is

money so you can go ». (Judge)

According to Mutombo (2008) these practices reproduce the colonial logic where those

in subordinate positions are perceived as existing in order to be exploited. In fact, the

Policemen he interviewed described civilians occupying a lower position than them as

‘‘prey to be hunted’’. Furthermore, some interviewees went as far as reproducing colonial

discourses and categories by stating that civilians from lower status were uncivilised and

therefore inferior. This apparently justified in their eyes practices of corruption based on

exploitation and domination as normal power relations in a highly hierarchical social

structure.

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In other instances, the transactions are not dictated by material or financial gain but

mainly by political influence, tribal connections or other forms of network solidarity.

When you have to look into someone who has powerful relations or community,

tribal relations, you need to be careful. They just have to make a phone call and you

find yourself being told how to handle the file. If you do, you get your boss on you

side and now you also have connections with someone for later on (Lawyer)

This form of corruption implies a double mechanism. On one hand, by accepting to be

corrupted institutional agents are subjugating to the power-relations exercised by someone

in a higher position. Their attitude towards superiors determines their workload and

deployment. If they refuse to take part of those transactions, they are faced with disci-

plinary sanctions.

The Attorney General goes to see a prosecutor who in turn goes to see his magistrate

and tells him ‘‘you have X’s file, you need to dismiss the case’’ ‘‘No, I can’t do that,

the charges are serious’’, ‘‘Colleague, you need to dismiss the case’’. So if you are

stubborn your relations with your boss won’t be good anymore and he is the one

evaluating you at the end of the year. He is the one who can sanction you. So just for

being late you can find yourself suspended without pay for three months. But

someone who doesn’t even show up won’t get even a warning because he is docile

and does as he is told. (Judge)

On the other hand, these types of practices can also be seen as a mode of resistance to a

law that does not recognize or acknowledge the role played by social networks. By the

same token, corruption can also be seen as as practices of subjugation to social expecta-

tions regarding wealth and social standings.

Lawyers and magistrates are part of those who are highly ‘‘regarded’’ in society and

therefore they are always scrutinised by the population. So the population wouldn’t

understand if a magistrate didn’t have a car. The neighbors would wonder what type

of magistrate he is if he can’t afford a car. (Policeman)

A final form corruption practices take is the usurpation of another agent’s role. Many

interviewees complained about social actors attributing themselves a role that legally they

did not have. For example, lawyers criticized magistrates who would contact defendants or

plaintiffs and offer their services, while magistrates protested that judges do the same

thing. Mutombo (2008) describes a particular but rampant mode of corruption where police

officers usurp the role and privileges of a different agent of the system. His interviewees

transformed themselves into « prosecutors » (by deciding whether or not action will be

taken), « judges » (by criminalising or de-criminalising cases and regulating civil matters),

« legislators » (by creating new laws and modifying or adapting existing ones), and the

« State » (by providing a salary for themselves).

Population’s Response to Corruption Practices within the Justice System:Exit, Role Reversal, Knowledge-Power

Confronted to the corruption practices of institutional agents, the population responds in

different ways. A common strategy is to refuse to call upon the relevant authorities in order

to deal with a particular situation. This might mean negotiating with the other party, calling

upon traditional leaders to find a solution to the problem, taking matters into their own


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hands (through private justice or popular justice) or using traditional means such as

‘‘ondola’’14 to identify murderers or ‘‘feticheurs’’ to identify the sorcerer and exorcise the

victim. This strategy is mainly based on the population seeking out experts of alternative

knowledges (spiritual, traditional or mediatory) to replace the legal or administrative

knowledge of governmental institutions.15 The government, institutional agents and other

social actors normally involved in those situations respond negatively to the deployment of

these alternative means. The interviewees working within the system demonstrated

accepting the scientific discourse of the West when they described a strong justice system

as being an essential element for democracy and therefore considering any attempts to

circumvent it as weakening democracy. However, we can also understand their reluctance

to accept alternatives to the justice system by considering that their use signifies an active

transformation of power relations from which they would find themselves excluded.

Another strategy deployed by the population is to use its knowledge of how the system

works to either seek a social relation who might act as an intermediary (in order to limit or

avoid extortion attempts from the agents) or to actually be the initiators of the corruption

practices (by offering a bribe or the material means necessary for the agent to do his or her

job). In other cases, the same practices might be deployed in order to influence the decision

and actions of the agent in their favour. These practices generate a certain sense of agency

and accomplishment to those individuals who then see themselves as entering the power

relations with authorities and the other party from a stronger position. Furthermore, they

can be seen as a form of resistance where civilians refuse to be ‘‘prey to be hunted’’,

preferring to take on the role of the exploiter, the one who buys the services and therefore

is in a position of patron.

A third strategy, although rarely used, is to denounce those agents to the NGOs16 in

order to reverse knowledge power by using science, knowledge and good governance in

their favour. When the NGOs are successful in influencing the actions of the police,

civilians see themselves as having been able to exercise power over the institution or its

agents who are, albeit temporarily, in a position of subjugation.

The police needs to understand that now, with the international observers and the

NGOs, they can’t do those things anymore. If they do, they’ll end up in court.

(Policeman)

NGOs also attempt to influence the government by denouncing it to the international

community. The strategy in place is to use the power-relations between the government

and the international community in their favour and therefore be in a better position within

their own power-relations with the government.

As an NGO, we act as liaison between national and international organisations to get

international pressure on the government. Sometimes we manage to win and get the

government to abide by the international community. (Activist)

The power-relations between the international community and local NGOs presents its

own struggles, as the latter need to follow the guidelines and priorities of the former in

order to obtain legitimacy and funding. Just as the government, the NGOs might appear to

14 Ritual through which the coffin of a murder victim will force its porters towards his or her murderer.15 Saleh-Hanna (2008) also identified the reluctance to use the criminal justice system by the Nigerianpopulation and their search for alternative means to solve the conflict.16 Described by a policeman as ‘‘those who beat us up when we beat up civilians’’.

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abide by the imposed priorities while focusing their time, energy, legitimacy and resources

to work on what they consider to be the key issues for the population.

The Justice System: Nodal Point of Practices of Resistance and Oppression

International pressure to follow certain guidelines and principles by governments in

transitional periods is a process of neo-colonisation. Not only is democracy being imposed

as good governance but capitalism and neo-liberal practices are also being imposed as the

economic model to be followed. An essential element of good governance is said to be a

strong and clean justice system. As such, it represents the nodal point and crossroads of

multiple levels of power relations. Governmental institutions are the target of power

relations between the international community and the government. The international

community attempts to influence the form, content and workings of those institutions,

while the government uses the transformations of those institutions as proof that they have

initiated the democratisation process. These institutions are also the means through which

power relations between the government and the population take place. The government

reaches the population through its institutions and the population addresses the government

through the same institutions. Similarly, governmental institutions are the intermediaries

between the NGOs and the government. Finally, these institutions establish power relations

with the population and NGOs, each attempting to influence the actions of the other as a

goal in itself. When we look beyond the specific power-relations and bring into the picture

other power-relations those social actors are involved in, we can see that practices that

might be characterised as either subjugation or resistance are often a mixture of both.

Within the justice system, many practices of corruption that can be identified as forms

of resistance do not appear to be thought-through or planed in advanced but sporadic and

self-serving and therefore cannot be conceptualised as part of a conscious, unified and

organised resistance. They are attacks to the system without the production of a viable

alternative. Being at the core of multiple power relations makes institutional actors want to

protect the system; they have a vested interest in maintaining the system as is because

through its proper and improper workings these actors play an essential role in a multi-

plicity of power relations. This means that, at the discursive level, civil servants accept the

truths produced by science regarding the need for a strong and clean justice system as a

requirement for good governance. The power effect of this discourse is what allows them

to enter power relations from a position of superiority. However, at the practical level these

actors appreciate the freedom and leverage that practices of corruption grant them and

therefore see attempts to impose good governance and fight corruption as unwelcomed

restrictions. It is in their interest to maintain the current system in place as it ensures them

that power takes place in them, through them, because of them.

In fact, institutional actors within the Justice System can be seen as vectors of power

relations through practices of corruption. In this case, the institution is simply the tool

through which power relations take place; civil servants are not part of those power

relations despite being the ones who are exercising them. This is the case when the

government orders the police to take illegal action on members of the opposition, NGOs,

the population, etc. or when those social actors resist by denouncing institutional practices

as means of influencing the government. Actors within governmental institutions can also

be the initiators of corruption when they negotiate an exchange of services with those from

a similar social network or when they extort financial or material resources from those in a

lower social position. Inversely, institutional actors can be the recipients of corruption


123

when the practice is initiated by a superior, a member of the elite or even a member of the

population. In both cases, either as the initiator or the recipient of corruption, there is a

capitalisation of institutional work that allows it to be used as the means to gain material or

financial resources, as well as intangible or symbolic benefits such as influence or social

recognition (Kienge Kienge 2005). Finally, institutional agents can also be victims of

corruption when corruption practices of other actors affect them directly such as when their

role is usurped or when they are punished for not following a ‘‘corruption order’’. It can

also affect institutional actors indirectly when superiors give cases or assignments based on

sympathies and common interests.

The term corruption embodies in itself a wide variety of practices presenting very

different underlying logics which are usually ignored. By clumping them together and

labelling them all as problematic, science neutralises practices that can be understood as

forms of resistance to the established modes of power relations (based on exploitation and

domination). It also condemns practices conforming to and well inserted into those rela-

tions of exploitation and domination but which are problematic given that they expose

dynamics that need to remain hidden in order for the truths produced by power-knowledge

to be able to continue its power effect.

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Justice in the Democratic Republic of Congo: Practicing Corruption, Practicing Resistance?