Leiden Law Blog

Constitutional gymnastics to stay in power… or to leave? Elections in the DR Congo

Constitutional gymnastics to stay in power… or to leave? Elections in the DR Congo

Towards the end of 2016, the Democratic Republic of Congo (DRC) hit the newspapers for violence related to elections that are not taking place. Why this upheaval about something that is not happening? In this blog I briefly discuss the constitutional gymnastics used by the ruling president, Joseph Kabila, to stay in power and some key events that took place.

When former president Laurent-Desiré Kabila was killed in 2001, he was succeeded by his son Joseph. In 2006, Joseph Kabila was elected for the first time. He was re-elected for his second term in 2011. Since the Congolese Constitution only permits two terms there should have been elections again in 2016. Yet Kabila is clearly reluctant to do so and had a trick up his sleeve, referring to a legal loophole in the Constitution that reads: “At the end of his term, the President remains in office until the effective installation of the newly elected President” (my translation). This begs the question: what if elections are not held? Can the incumbent then legitimately remain in office? Naturally, the article has been quite vehemently contested by opposition parties. But in May this year, the Constitutional Court ruled that indeed Kabila could stay in power until the inauguration of a new president.

Given Congo’s troubled past and present, one could be forgiven for thinking that Congo’s political opposition and citizenry would be too cynical to refer to laws to question its ruler. But the opposite is true. To support its position, the opposition refers to articles 73 (on when elections should be scheduled) and 75 (on the replacement of the President with the President of the Senate under specific conditions). In their protests, social movements refer to constitutional article 64: “All Congolese have the duty to thwart any individual or group of individuals who took power by force or who exercises in violation of the provisions of this Constitution. Any attempt to overthrow the constitutional regime is an imprescriptible crime against the nation and the state. It is punished in accordance with law” (my translation).

Protests about the pending elections have been occurring since January 2015. Elections should have been scheduled by September 19, 2016, at the latest. When the deadline passed, people took to the streets showing yellow cards to call for Kabila to step down. When his constitutional term expired on December 19, 2016, more protests followed during which people showed red cards and blew whistles to indicate the end of the presidential match. The protests were anticipated, and the regime took repressive measures resulting in 34 confirmed deaths, and close to 300 arrests of political opposition members and civil society representatives. On Sylvester’s eve a deal was finally brokered between the presidential majority and the opposition parties. There were two important conditions: presidential elections before the end of 2017, and no constitutional changes to enable Kabila’s third term.

The question now is whether people will accept the prolongation of Kabila’s term until the end of 2017 and whether elections will indeed take place as agreed. With less than 8 % of the population supporting Kabila, Congo and Congo observers are holding their breath. Will Kabila himself sign the long-negotiated agreement (and not only the government’s spokesperson)? Will social movements accept the deal? Will the country’s first peaceful democratic transition be made possible, or is a violent transition inevitable? The dust has clearly not yet settled.

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