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 have argued for changing 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 in 2016 and step down. They have been organizing demonstrations and strikes to protest any attempt to change the constitution to keep Joseph Kabila in power.

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 and no runoff would be required if no one candidate garnered fifty percent or more. 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.

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.

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. It is clear that a dialogue will take place under the auspices of the international community (Kabila first rejected this format), however, it is not clear when it will take place and what the results are likely to be.

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.

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