• By : Gaby Kabue
• 2022-03-16 09:29:39

Abstract

The DRC has promulgated the law No. 20/017 of November 25, 2020 relating to Telecommunications, Information and Communication Technologies (ICT). The law has been published by the Official Journal into the special registration number issued in September 22, 2021. Indeed, the new law abrogates the law No. 013/2002 of October 16, 2002 on Telecommunications in the Democratic Republic of Congo, as well as Law No. 014/2002 of October 16, 2002 creating the Post and Telecommunications Regulatory Authority (A.R.P.T.C.). It should be noted that the abrogated laws have governed the sector of ICT for more than a decade, but their enforcement has proven to be unsuitable, following the exponential development that the sector is undergoing. The new law calls for the creation by decree the Regulatory Authority for Posts, Telecommunications, Information, Communication and Technologies of Congo, “A.R.P.T.I.C”. However, since the new law was promulgated, the enforcement actions have not been taken in execution of the law, so that the A.R.P.T.C. be maintained in operation under article 201 of new law, pending the creation of the A.R.P.T.I.C. In view of the above, there is reason to wonder on what legal text the A.R.P.T. C. relies to maintain its existence.

Brief reminder of the legal existence of the A.R.P.T.C under old law

Under the abrogated law No. 014/2002 of October 16, 2002, especially in its article 1, an independent Post and Telecommunications Regulatory Authority has been established in the DRC, called: Regulatory Authority of Post, Telecommunications and Communication, A.R.P.T.C in acronym. The A.R.P.T.C. is a legal person governed by public law with legal personality. It works under the supervision of the Presidency of the Republic.

View point of the new law on legal existence of the A.R.P.T.C

Under the terms of the provisions of new law No. 20/017 of November 25, 2020 relating to Telecommunications, Information and Communication Technologies, especially in its article 201, stipulates that "pending the creation of the Regulation Authority through the decree deliberates in the Council of Ministers in accordance with Article 11 of this law, the Post and Telecommunications Regulatory Authority of Congo performs the regulatory role. On the date of its creation, the Regulatory Authority inherits the assets of the Post and Telecommunications Regulatory Authority of Congo”.

As for article 202 of the law under examination stipulates: "the framework law No. 013/2002 of October 16, 2002 on Telecommunications in the Democratic Republic of Congo, as well as law No. 014/2002 of October 16, 2002 creation of the Post and Telecommunications Regulatory Authority are abrogated”.

However, so far, the regulations have not been taken in execution of the new law so that the A.R.P.T.C instituted under law No 014/2002 of October 16, 2002, is maintained in activity by article 201 of the new law, pending the creation of the Regulatory Authority for Posts, Telecommunications, Information and Communication Technologies of Congo, A.R.P.T.I.C., by decree deliberated in the Council of Ministers.

Opinion of the Council of State

By motion filed with the Registry of the Council of State in February 1, 2022, the President of the College of the Post and Telecommunications Regulatory Authority of Congo, A.R.P.T.C., Mr. Christian KATENDE, acting through his Counsel Mr. Kodjo NDUKUMA ADJAYI, lawyer at the Kinshasa/Matete, Bar Association, filed a request with the registry of the Council of State to request from the Council of State, consultative section, chamber for the interpretation of legal texts, a motivated Opinion to interpret the provisions 201 and 202 of law No. 20/017 of November 25, 2020 relating to Telecommunications, Information and Communication Technologies.

Indeed, the Council of State, consultative section, chamber for the interpretation of legal texts issued an Opinion under RITE 045 of February 08, 2022 concluding that:

1.  Articles 201 and 202 of Law No. 20/017 of November 25, 2020 relating to Telecommunications and Information and Communication Technologies are complementary;

2.  Article 201 of new Law reaffirms the continuity of the Post and Telecommunications Regulatory Authority of Congo, A.R.P.T.C., and maintains in force the Law No. 013/2002 of October 16, 2002 on Telecommunications in the Democratic Republic of Congo, pending its removal or regulatory modification.

3. The Post and Telecommunications Regulatory Authority shall continue to operate and exercise all of its powers. It applies Law No. 20/017 of November 25, 2020 relating to Telecommunications, Information and Communication Technologies, until the materialization by regulatory means of the institutional framework provided for by said law.

4. The fate of the Post and Telecommunications Regulatory Authority of Congo, A.R.P.T.C., for its operation, modification or deletion, statement of the regulatory power, exercised as the case may be, by the Prime Minister or the minister in charge of this ministry, in this case, that of Post, Telecommunications, New Information Technologies and Communications.

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