OHADA / RDC / DRC joins the Organization for the Harmonisation of Business Law in Africa (OHADA): end of the isolation of its business legal system

• 15/01/2011
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Nous avons le plaisir de vous communiquer infra l'article écrit par Me Aubin N. MABANZA et publié dans la revue de l'International Bar Association, numéro de décembre 2010. DRC joins the Organization for the Harmonisation of Business Law in Africa (OHADA): end of the isolation of its business legal system ‘The OHADA Treaty is a judicial tool thought and achieved by Africa to promote economic integration and … growth’. Keba Mbaye 2010 seems to be a historic year for the judicial system of the Democratic Republic of Congo (DRC). On 11 February 2010 His Excellency, President Joseph Kabila promulgated a new law allowing the DRC to join the Organization for Harmonisation of Business Law in Africa (OHADA) which was established by the Treaty signed in Port-Louis on 17 October 1993. The OHADA Treaty is comprised toda of 16 African States. The DRC is due to join shortly. Membership is open to all African countries, whether or not they are members of the African Union (formerly known as the Organisation of African Unity, OAU). The OHADA Treaty's primary objective is to address the legal uncertainties and judicial insecurities prevailing in States Parties. Such legal uncertainties occur mainly due to the obsolescences of existing legal texts - most of which in fact date back to colonial times and, more specifically, to the economic situation and international relations of States Parties today. Judicial insecurities stem from inadequacies in the administration of justice from legal and professional ethics to a lack of material resources and inadequate training of judges and court officers. In the mid-1980s, African governments appointed the prominent Senegalese Judge Keba Mbaye to examine how to best to resolve these problems. He reported, inter alia, that the various judicial and socioeconomic insecurities do in fact constitute a real obstacle to economic development. As the 17th member of the OHADA, the DRC will be opportune to update its judicial arsenal, especially in the area of business law. Bearing in mind that most of its current laws date from the colonial era, they are obsolete and create an unfavourable climate for business. In practice, national and foreign investors experience much difficulty in establishing businesses in the DRC. Its recent annual report ‘Doing Business' classified the country at the bottom of rankings, regardless of all efforts in this area. Located in central Africa, the DRC occupies a surface of 2,345,409 km2, with almost 70 million habitants. It is a rich and diverse country, with substantial human and natural resources. Its tropical forest is the second largest in the world. The country is blessed with fertile land, heavy rains and abundant mineral resources with ten per cent of the world's copper reserves, 30 per cent of diamonds, 50 per cent of cobalt and 70 per cent of coltan, amongst other unexploited resources. Since its attainment of independence in 1960, the country has been through free elections and fair democratic elections and has acquired much political stability. It is a potentially economically viable country. In order to guarantee an attractive private investment terrain, the DRC signed up to a number of international agreements and conventions including those of the World Bank Group; the International Centre for Settlement of Investment Disputes; Extractive Industries Initiative; and the Multilateral Investment Guarantee Agency. Between 2001 and 2009, there have been various noticeable commercial reformations accomplished via the country's Mining Code, the Employment Code and the Investments Code - which has, in turn, established the National Agency for Investments Promotion. There were new legislations promulgated in February 2010 which significantly updated the business laws. Consequently, such commercial administrative procedures as the waiting period for company incorporation by the ‘Nouveau Registre du Commerce’ (NRC) dropped from 15 working days to five days. The mandatory requirements for Criminal Records of commercial societies and proof of residence attestation by non-civil servants have also been removed. The improvement of the business climate in the DRC is no doubt a step in the right direction towards its business reformation process. Its membership of OHADA will certainly further enhance and project the country's international commercial possibilities. Aubin N Mabanza Klam & Partners Avocats, Kinshasa amabanza@klamandpartners.com