Congo's Constitutional Battle

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Constitutional Debate
General Overview (Q & A)
Declarations & Resolutions
Key News Highlights


Q & A
1. What is the central point of contention around Congo's constitution?
The DRC's Constitution limits the President to two five-year terms. Joseph Kabila, the current DRC president's second five-year term (2011-2016) will expire on December 19, 2016, however, members of his party and majority coalition have argued for breaching the constitution so that Joseph Kabila can run for a third term. Civil society groups, opposition parties, the catholic Church, notable figures in the DRC and others have called on Kabila and his ruling majority coalition to respect the constitution and step down.

2. Has Joseph Kabila said he plans to change the Constitution to remain in office?
No, he has not said he plans to change the constitution. However, he has not said unequivocally that he plans to abide by the constitution and step down.

3. What has been the response from the political opposition?
The political opposition has vociferously called for Kabila to respect the constitution, organize elections and step down. They have been organizing demonstrations and strikes to protest any attempt by Joseph Kabila to change the constitution or remain in power by delaying the organization of elections.

4. Is there any chance that what happened in Burkina Faso will occur in the Congo?
As was the case in Burkina Faso, it appears that those in power aim to manipulate the constitution to remain in power. Ideally, Joseph Kabila and his majority coalition would respect the constitution and step down at the end of his second term in 2016. However, if Kabila attempts to stay in power, there is a high likelihood that large demonstrations will ensue. Whether they will reach the scale of Burkina Faso is difficult to say, however, there will be protests that will increase in size as we get closer to December 2016.

5. When was Congo's Constitution ratified?
The Constitution was ratified through a nationwide referendum in 2006.

6. Has the Constitution been amended since its ratification in 2006?
Yes! Several amendments were made in 2011 to give the president more power and strengthen the majority party, most notable was the changing of the electoral rules to benefit Joseph Kabila. The Constitution originally required a run-off in Presidential elections if no one candidate received more than fifty percent of the votes. Kabila changed the Constitution so that only a plurality of the votes would be required to win the presidency. The Kabila regime argued this was necessary to reduce the cost of the elections but a more plausible explanation is that Kabila is deeply unpopular and could not garner more than fifty percent of the popular vote and if pitted against any singular candidate in the elections, he would likely lose because of the profound level of discontent with his leadership.

7. It appears that Joseph Kabila plans to run out the clock and not organize elections in 2016, what does the DRC constitution say about failure to organize elections?
It is becoming more likely that the Kabila government will not organize elections in 2016. Although Article 73 of the Constitution calls for the organizing of elections 90 days before the sitting President leaves office on December 19th, it does not specifically address the failure of the sitting president to organize elections. However many scholars and opposition figures have referenced elements in Article 165, specifically this phrase, "high treason is established if the President of the Republic has deliberately violated the Constitution..." The argument is that President Kabila has deliberately failed to organize elections and this failure constitutes an act of treason.

8. What is Article 64 and why are Congolese rallying around this Article of the Constitution?
Article 64 is described below. It has been embraced by those opposed to the Kabila regime and used to send a signal to the regime that if Kabila remains in power beyond December 19th, he will be in violation of the constitution. Therefore, it will be the duty of the people to oppose such a violation of the constitution.

9. What is the status of the national dialogue?
The national dialogue was officially launched on September 1st, after  numerous  delays and  a lot of jockeying by would-be participants. In the end, the only major opposition party to participate is Vital Kamerhe's Union pour la Nation Congolaise (UNC). Although Etienne Tshisekedi's Union for Democracy and Social Progress (UDPS) had talks with the Kabila regime about participation in the dialogue, in the end they decided not to participate unless certain conditions (FR) are met.

10. Will the presidential elections occur this year?
It is highly unlikely, if not impossible for the elections to take place this year. The Kabila regime has pursued a concerted strategy to block the organizing of elections. At this stage, elections are very unlikely and should one listen to the Kabila regime's supporters and the national electoral commission (which for all intents and purposes, is controlled by the regime), it will be at least 16 months before elections are organized and this is a best case scenario. The dialogue is supposed to resolve this matter but there is no certainty that the dialogue will deliver a solution.




Article 70
The President of the Republic is elected by direct universal suffrage for a term of five years which is renewable only once. At the end of his term, the President stays in office until the President-Elect effectively assumes his functions.

Article 220
The republican form of the State, the principle of universal suffrage, the representative form of government, the number and length of the terms of office of the President of the Republic, the independence of the Judicial Power, the pluralism of political parties and trade unions may not form the object of a Constitutional amendment.

Any constitutional amendment having as its objective or consequence the reduction of individuals rights and liberties or the reductions of the prerogatives of the provinces and decentralized territorial entities is formally prohibited.

Other Key Articles Informing the Debate
Article 64
All Congolese have the duty to oppose any individual or group of individuals who seize power by force or who exercise it in violation of the provisions of this Constitution. Any attempt to overthrow the constitutional regime constitutes an offense against the nation and the State, an offense which is not subject to the statute of limitations. It is punished in accordance with the law.

Article 73
The ballot for the election of the President of the Republic is scheduled by the National Elections Commission ninety days before the end of term of the incumbent President.

Article 165
Without prejudice to the other provisions of the Constitution, high treason is established if the President of the Republic has deliberately violated the Constitution or if he or the Prime Ministers are identified authors, co-authors or accomplices of grave and specific human rights violations, or of the transfer of a part of the national territory.

Failings in matters of honor and integrity are established particularly if the conduct of the President of the Republic or the Prime Minister is contrary to morality or if they are identified as authors, co-authors or accomplices of embezzlement of funds, corruption or unjustified enrichment.

An insider crime of the President of the Republic or the Prime Minister is established if they conduct commercial operations with regard to immovable assets or goods on which they possess privileged information that they use for their benefit before it is known by the public. The insider crime covers the purchase and the selling of shares based on information which would never be disclosed to the shareholders.

Contempt of Parliament is established if the Prime Minister does not provide any response to questions asked by either of the Parliamentary Chambers concerning the activities of the Government within a time period of thirty days.

Dialogue
The idea of a dialogue was initiated by President Joseph Kabila in a speech to the nation on November 28, 2015. After failing to arrive at a national consensus from the national consultations of 2013, Kabila returned to a similar playbook under the guise of a national Dialogue.  This represents his latest attempt to establish legitimacy for staying in power beyond December 2016. Although roundly rejected by most of the Congolese opposition, the dialogue has garnered support as it becomes increasingly evident that Presidential elections will not be held in 2016. The United Nations calls for a dialogue in Resolution 2277 and the African Union has appointed former Togolese Prime Minister Edem Kodjo as facilitator of the dialogue.  The United States, European Union and Francophonie are all in agreement that a dialogue is necessary. The Congolese opposition has become more unified in their view of a dialogue with the Kabila regime, provided that Kabila first release political prisoners and fulfill several other preconditions (FR). It is clear that a dialogue will take place under the auspices of the international community (Kabila first rejected this format). After much



Glissement (Slippage)
Glissement is a french word which means to stretch out, slide or shift. In the context of the political situation in the DRC, it appears that President Kabila would like to stretch out the electoral process beyond his constitutional mandate, which ends in December 2016.

Select Key Players
Opposition
Etienne Tshisekedi
, long-time opposition figure who heads up the UDPS
UDPS, Union for Democracy and Social Progress, political party of Etienne Tshisekedi
Moise Katumbi, Former governor of the old Katanga province who was a part of Joseph Kabila's political party but let in the Fall of 2015 when it became clear to him that Joseph Kabila had no intention of respecting the constitution and stepping down and the end of his term on December 19, 2016. Katumbi is now part of the opposition.
G7 - Short for Group of Seven individuals who left Joseph Kabila's majority coalition in 2015 when Kabila would not declare that he would step down at the end of his term. Members of the G7 are now a part of the opposition.
Martin Fayulu, President of ECiDé (Engagement pour la Citoyenneté et le Développement) and key opposition figure who is opposed to the dialogue.
Vital Kamerhe, President of political party Union pour la nation congolaise (UNC). He was first opposed to the dialogue but has now joined the dialogue to the chagrin on many in the opposition and his own party, most notably one of the founders and secretary general Jean Bertrand Ewanga Is’ewanga and Claudel André Lubaya, first deputy secretary general, both of whom resigned as a result of Kamerhe's decision to participate in the dialogue.
Joseph Olenghankoy, President of political party FONUS and a vocal opposition to the dialogue. He is a veteran opposition figure who opposed both the Mobutu and Laurent Desire Kabila regimes.
Olivier Kamitatu, President of political party, l'Alliance pour le renouveau au Congo (ARC). He is a member of the G7 who left the Kabila majority coalition and was also a member of the government serving as Planning Minister until he resigned in 2015. He is also opposed to the dialogue and subscribes to the position of the G7.

Majority
Alexis Thambwe Mwamba, Minister of Justice and Human Rights who hails from Maniema. He is a former foreign minister and former member of Jean Pierre Bemba's rebel group MLC, Congolese Liberation Movement.
Kalev Mutond, head of Congo's intelligence services (ANR - Agence nationale de renseignements) is one of the most feared man in DRC. He is one of many former Mobutuist who joined the Kabila regime. He was a key figure in the crackdown on the #Telema uprisings in January 2015, which resulted in at least 42 Congolese death at the hands of Congo's security forces.
Evariste Boshab, Deputy Prime Minister in Charge of the Interior and Security. He is a former president of the National Assembly and former Secretary General of Kabila's party PPRD ( People's Party for Reconstruction and Democracy).  Boshab is also a former constitutional law professor at the University of Kinshasa who wrote a book in 2013 arguing for a change in the DRC constitution so that Joseph Kabila can remain as president indefinitely.
Tryphon Kin-Kiey Mulumba, Minister Responsible for Relations with Parliament is the creator of Kabila Desir (Association that promotes Joseph Kabila). He has argued vociferously for the maintenance of Kabila in power. He is also a former Mobutuist who served as Mobutu's last spokesperson.
Henri Mova Sakanyi, A co-founder of the PPRD, Kabila's party (People's Party for Reconstruction and Democracy) and now serves as the party's Secretary General. He hails from Katanga province where he was a human rights activist. He is an ardent advocate for the maintenance of Kabila in power beyond his constitutional mandate.

C6
The C6 is a council of six strategists of President Joseph Kabila. They are Nehemie Mwilanya, Cabinet Director, Kalev Mutond, head of Congo's Intelligence Agency, Leonard She Okitundu, former Foreign Minister and now a member of the Presidential Majority Directorate, Alexis Thambwe Mwamba, Minister of Justice, Andre Kimbuta, Governor of Kinshasa, and Norbert Nkulu, Ambassador to Rwanda. The council is responsible for engaging the opposition and putting in place the national dialogue that Kabila announced on November 28, 2015.

U.S. Sanctions List
Céléstin Kanyama
General Céléstin Kanyama is the Congolese National Police (PNC) Provincial police commissioner for Kinshasa.

Gabriel Amisi Kumba
Major General Gabriel Amisi Kumba (Amisi) is a Commander in the Armed Forces of the Democratic Republic of the Congo (FARDC).  He is the leader of FARDC units in the First Defense Zone, which covers the provinces of Bandudu, Bas Congo, Equateur, and Kinshasa.

John Numbi
General John Numbi (Numbi) is the former National Inspector for the Congolese National Police.



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