Congo-Kinshasa: Elections in a failed state: an aberration
By Jean-Bosco Kongolo M.
As if the elections were an end in itself or as if they were sufficient to resolve the thorny problem of the crisis of legitimacy, no one seems to ask the question “to what state and by whom should these elections be organised?” At first glance, the question seems weird and even senseless when it is known that Congo-Kinshasa is counted on the list of the States members of the United Nations. But in reality, this Congo, elephant with feet of clay, still stands only thanks to the will to live together of his people, who resists somehow to the execution of various plans of destabilization whose arm executor is is none other than Kabila.
Satisfied to have achieved a large part of the mission for which he was imposed at the head of the Congo-Kinshasa, Kabila, having yielded to the pressure of his former supporters outside, imposed unilaterally on his new electoral platform named FCC (Common Front for the Republic)[1], his dolphin – Emmanuel Shadari, the permanent Secretary of the PPRD – who will have the task to finalize the plot. Should he wait more than two years after the expiration of his presidential term and thousands of victims of democracy so that his “Kingakati Club” finally finds this ‘rare bird’ which defies all predictions? As we shall see in this analysis, this designation is done after all the Republican institutions have been emptied of their contents with the complicity of the country’s sons and daughters, including the ‘Dolphin’ Ramazani Shadari.
Joseph Kabila managed to empty all the Republican institutions of their content with the complicity of the country’s sons and daughters, while respecting neither the Constitution nor the laws of the Republic. Todate, the State is completely bankrupt and cannot organize credible and transparent elections if, on the one hand the authors of the debacle are not released and of other hand if nothing is done to rebuild the State.
Methodically and only by consulting the Constitution, we will demonstrate how, one by one, all the institutions (President of the Republic, Government, Parliament and Judiciary) were made legally non operational. Before concluding our analysis, we will make some proposals that could inspire the future transitional authorities, inevitable, to fill the gaps to rebuild the Congolese State in order to hold credible elections.
1. The purpose of the February 2006 Constitution
For the umpteenth time, we recall the Constitution statement of reasons intentionally abused by politicians, all trends, which clearly summarizes the purpose of the new political order: “since the independence on 30 June 1960, the Democratic Republic of the Congo is facing recurrent political crises that one of the root causes is the contestation of the legitimacy of the institutions and their leaders.
This contestation took a special highlight with the wars that have torn the country from 1996 to 2003.
To end this chronic crisis of legitimacy and to give the country the odds to rebuild, the delegates of the political class and civil society, forces of the Nation, gathered in inter-Congolese Dialogue, agreed in the agreement Global and inclusive signed in Pretoria, South Africa on December 17, 2002, to implement a new order policy based on a new democratic Constitution on basis of which the Congolese people can choose his leaders, thow free, pluralistic, democratic, transparent and credible elections. »
At a few five months to the date announced for the elections supposed to give the people the opportunity to choose new leaders, we are still at the starting point, with some former elected already contested for lack of legitimacy but which do not show any sign of willingness to respect what the people had solemnly expressed in the following excerpt of the preamble of the Constitution: ” We, the Congolese People, United by destiny and history around the noble ideas of liberty, fraternity, solidarity, justice, peace and work;
Driven by our common will to build in the heart of Africa a State under the rule of law and a powerful and prosperous Nation based on a real political, economic, social and cultural democracy;
Considering that injustice and its corollaries, impunity, nepotism, regionalism, tribalism, clan rule and patronage are, due to their manifold vices, at the origin of the general decline of values and the ruin of the country;
Affirming our determination to safeguard and consolidate national independence and unity by respecting our positive diversities and particularities; »
Because of the selfishness, greed of politicians, their ignorance of the concept of State and the lack of patriotic political vision, Congo-Kinshasa is constantly a permanently failed state, under supervision of the international community and humiliated even by those who should not dare to lift their little finger. Is there no shame in the current political class to have led Congo to a failed State, today in total uncertainty about immediate future? Everything happens as if politicians were still nostalgic of the single thought, and that the Constitution had not clearly divided responsibilities between institutions to ensure that they operate harmoniously in balance.
2. What remains of the institutions of the Republic?
In order to avoid the unique thinking that characterized the MPR Party-State regime, the Constituent of the Third Republic was careful to unequivocally distribute state power and powers among four institutions: the President of the Republic, the Parliament, the Government and the Courts and Tribunals. With the exception of the Judiciary, of nature and functioning independent of the others, the first two institutions are directly from the ballot box while the Government is indirectly.
Article 78 para. 1st of the Constitution: “The President of the Republic appoints the Prime Minister from the ranks of the parliamentary majority after consultation of the latter. He terminates the functions of the Prime Minister upon presentation by the latter of the resignation of the Government.“
The principle according to which “people move on, but institutions remain“, it is important to make the distinction between the institutions and the people who run them or who make them work. Unlessfundamentally bad faith not tosee and admit it, to date none of these institutions operate in accordance with the Constitution and the laws of the Republic. Hence the exacerbation of the crisis of legitimacy as well as the bankruptcy of the State that we live already.
Joseph Kabila during the ceremony of call to arms of the FARDC commanders, July 7, 2018.
A. The President of the Republic
Since the advent of the Third Republic, the institution President of the Republic has known so far only a single facilitator, Joseph Kabila. By his will, repeatedly expressed by his political supporters, and tacitly encouraged by himself, as he wants to remain in power, Joseph Kabila is the main responsible for the bankruptcy of his institution, causing at the same time the bankruptcy of the Congolese State. In the rule of law, it is for a long time that Joseph Kabila would have been in jail for high treason following repeated violations of the Constitution which he is supposed to be the guarantor and the first Defender.
Article 160(al. 1er )
“The Constitutional Court is charged with the control of the constitutionality of laws and of measures having the force of law.”
Article 164
“The Constitutional Court is the criminal court for the President of the Republic and the Prime Minister with regard to the offenses of high treason, contempt of Parliament, failings in matters of honor and integrity as well as insider crimes and all the other common law offenses committed in the exercise or on the occasion of the exercise of their functions. It is equally competent to try their co-authors and accomplices.”
Article 165(al. 1er )
“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.”
Indeed, nothing justifies legally, politically and morally that he is still at the head of the country after the expiry of his dual mandate, he who has shown himself unable to respect the Constitution, his oath before God and the Nation , the laws of the Republic and even his word. By thus bankrupting the institution President of the Republic which had been entrusted to him for a specific period of time, while he was responsible for ensuring the smooth operation of the other institutions, the person Kabila caused the bankruptcy of the entire state building.
Article 69
“The President of the Republic is the Head of the State. He represents the nation and is the symbol of national unity.
He ensures the respect of the Constitution.
He ensures, through his arbitration, the proper functioning of the public authorities and institutions as well as the continuity of the State. He is the guarantor of national independence, territorial integrity, national sovereignty and the observance of international treaties and agreements.”
B. The Parliament
In its bicameral form, the Parliament (National Assembly and Senat) [2] , is the institution that has sown more confusion and anarchy in the exercise of power in Congo-Kinshasa. With members more applauders and enjoyers than legislators [3], the deputies and senators have transformed this institution into a sound box running, as in the MPR’s time.
We want as an example, the draft of the electoral law of January 2015, an Evariste Boshab’s work, which the National Assembly had adopted at night and which subordinated the organization of the elections to the preliminary census of the population, which would cause legally slide as desired by the so-called “Club of Kingakati.“[4]
Between 2012 and 2017, these same deputies (of the opposition and of the power) continued toin the same institution become hybrid, senators who have exhausted their legislative mandate, regardless of the validity of the laws passed in second reading by people without quality. From 2017 to date, all have become of out – law. Apart from those who had resigned and left the institution for reasons more political than legal, all continue to be called “Honorable”and pass laws, recieve huge emoluments and to benefit from all kinds of advantages, to the detriment of the people who had given them a limited mandate in time.
Paradoxically, there are even deputies and senators of opposition Who have the nerve to denounce the repeated violations of the Constitution, to promote democracy and the rule of law, without daring to lead by example by taking leave of this institution which no longer has its reason being. How not to assert that their wisdom and honorability are found only in their pockets and in the depths of their bank accounts?
C. The Government
In the context of the Third Republic, the Government is the emanation of the National Assembly because it must be headed by a Prime Minister designated within the parliamentary majority. But for reasons of political calculation, Joseph Kabila unilaterally placed himself above the Constitution by ignoring this constitutional requirement. Proceeding by poaching outside the parliamentary majority, Joseph Kabila has managed to recruit his last two Prime Ministers into the ranks of the opposition [5], to the applause of these same “deputies” hypocrites, who dare denounce only undercover of anonymity, without drawing all the necessary legal and political consequences.
Therefore this kind of government, whose members are selected more by their ability to enjoy and keep silent than by their competence, is directed since the presidency from which all the guidelines and instructions come. Composed of old “fierce opponents”, become ministers and members of the FCC in gratitude to their benefactor, the government cannot even take advantage of favorable prices of raw materials to mobilize revenue, improve the social conditions of workers and the population, meet the primary social needs of the latter and carry out major reconstruction projects in the country. This bankruptcy of the state is symbolized by a meager and ridiculous national budget, less than five billion US dollars for a country described as a geological scandal.
D. The bankruptcy of the judiciary
On the site www.afridesk.org, dozens of analyzes have been entirely or partially devoted to the judiciary to either address its dysfunction or denounce the interference of other institutions in the administration of justice or the lack of ethics professional in the behavior of most magistrates. Our countless readers also remember the scandal that hit the headlines a few months ago about some of the judges who exercised this noble Career when they did not even hold a law degree[6], one of the conditions required by law to be recruited.[7] Just recently, we have demonstrated, with legal texts, how Joseph Kabila and Bruno Tshibala have completed disorganization the Judiciary by signing regulatory acts (ordinances and decree) of judicial organization in violation of the Constitution and laws of the Republic.[8]
With regard mainly to presidential orders, it should be remembered that people who should not even have a career as a magistrate find themselves promoted to grades and positions they would not deserve in a normal state of law. Without the need to name names (we know what we are talking about), the Court of Cassation, the Courts of Appeal as well as the General Prosecutor’s Offices of these high courts are, by the will of Joseph Kabila, infested with poor magistrates who were swept several grades at a time without any exceptional merit on their part. Depending on the case, presidents of the High Court and Court of Appeal counselors, still under observation, become Counselors at the Court of Cassation, First Presidents or Presidents of Court of Appeals while among them, some have never written the simplest of judgment called ” jugement préparatoire ou avant dire droit”.[9]
Attorneys General of the Republic or Substitutes of the Attorney General at the Court of Appeal are propelled directly to the rank of Attorney General at the Court of Appeal or plainly Advocate General of the Republic without ever having directed a Prosecutor General at the Court of Appeal. Those who have the opportunity and the time to read these orders, will easily discover that even the assignments in the provinces reveal the strategy behind this and the role, thinly veiled, expected of these magistrates: endorse the results already programmed in cheating machines.
3. The impact of institutional failure on the electoral process
Those who hastened to put their candidatures to the presidential election, did they take the time to think of the role and the impact of all these institutions on the electoral process? Do opposition political parties have well-structured study units to develop effective electoral strategies or objectively examine the strengths and weaknesses of the candidates nominated emotionally by their congresses, as well as the strengths and weaknesses of the camp? opponent? Are they aware that legally, none of the elective institutions is legitimate to play any role in the credible and transparent electoral process? Do they have the short memory to ignore and minimize the collusion between the Constitutional Court and the electoral institution (CENI)[10], this institution of support for democracy that has become a simple technical commission of “Front of the corrupt Congo” (FCC) in electoral matters?[11]
What do they expect from these members of the Constitutional Court and from all the magistrates irregularly and illegally appointed when it comes time to examine the electoral disputes resulting from the invalidation of the candidatures and the results already programmed by the cheating machines of Nangaa? Did they obtain from the latter the assurance of cleaning the electoral roll?[12]
The management of Jean-Pierre Bemba’s return to Kinshasa and the refusal to allow Moïse Katumbi to return to the country even to be arrested, aren’t they sufficient clues of the will of the Club of Kingakati to trap and neutralize the opposition in order to bias the electoral process? It is absurd that all these political parties and their candidates behave the same way as the African national football teams, which are full of talent but needlessly proud to participate in the World Cup without significant organization and preparation. We know the results at each edition and this is likely to happen, when we know that in Africa, the power does not organize elections to lose them.[13]
The coordinator of DESC, Boniface Musavuli, explains this electoral scheme of the slogan “we win or we win” in his brilliant prospective article entitled “Kabila-2018: The power or the power, he will tempt the devil“.[14] What would be worth a common candidate of the opposition, be it Cardinal Monsengwo, against the results already programmed in advance by “outlaw” determined to challenge everyone?
4. The merits of a restorative transition
In the light of all the above, the participation of the opposition in the elections would only make sense if, beyond a reasonable doubt, the strategists of the various staffs are convinced first of all that the elections will actually take place. They should then question the assets on which the “Front of the corrupt Congo” (FCC) bomb the torso and founds its chances of success despite a largely negative assessment knowing that sociologically speaking, the people have definitively turned their backs on him? The following delicate steps will follow: the withdrawal of Joseph Kabila from the electoral process as candidate, the abandonment of the voting machine, the cleaning of the electoral register and finally the sincere designation of a single application taking into account the reality on the ground: a unifying candidate whose file cannot be invalidated by the CENI.
In view of the path already taken and the determination of the Club of Kingakati, to remain in power whatever it costs, with or without Kabila, no concession will be granted to favor the holding of credible and transparent elections, synonymous with an alternation dreaded since December 2016. Under cover of anonymity, a friend member of Common Pits of Congo “(Another name of the FCC) has suggested that the number of future elected officials is already known nationally.
That’s why, rather than putting the cart before the horse, as is the case now, the real citizen fight consists of clearing out all those outlaws to set up a short transition led by technocrats not involved in state bankruptcy. The mission of the transitional power will consist of:
-Revent the ballot in two rounds for more credibility;
-Reorder at all levels of the judiciary;
-Eliminate duplicates at the level of political parties;
-Free space and political detainees;
-Restructure the CENI to make it more independent and
-Clean the electoral file and eliminate the cheating machine;
-To make public media accessible to all political octors and
-Refer the economy to bail out the coffers of the state.
Conclusion
More than ever, Congo-Kinshasa needs a real alternation, which is not facade. The non-respect of the new political order put in place by the Constitution of 2006 catches every day that passes those who believed that at all times the law of the force had primacy over the force of the law to submit indefinitely a people determined to overcome. As in no other country in the world, this has led to the annihilation of all state institutions, which amounts to the very failure of the state.
In this context, history and future generations will never forgive us aberration to go to elections with those who, by their pride, selfishness and bulimia of power, are responsible for this bankruptcy and are preparing, cheating machines and infested electoral file, to stay longer in power. Moreover, despite the unconvincing statements made just to lower the tension, Joseph Kabila and his unaware helpers have the nerve to talk about these elections as pure as they know they will not run in transparency.
That is why we believe that a short transition is the necessary way to rebuild the state, with neutral personalities who will put all the competitors at the same level for truly credible, free, democratic and transparent elections.
Subscribe to another plan is, in our view, another way of betraying the fatherland.
Kongolo Mulangaluend J.B.
Jurist and criminologist, Deputy of DESC
References
[1] No congress of the PPRD or FCC is envisaged for that, everything is like the old days of the MPR, where the voice of the guide was majority.
[2] In most cases, parliaments have two chambers: the low room and the high room . The second is often a Senate. In http://perspective.USherbrooke.ca/Bilan/servlet/BMDictionnaire?iddictionnaire=1470.
[3] In twelve years of practice, some have never taken the floor to express their point of view on issues of national interest. On the other hand, like one of us, have not put their feet back in their fiefs but have only enlarged their harem of wives.
[4] Kongolo, JB. 2015, Loi électorale de la RDC : la fraude corrompt tout. In http://afridesk.org/fr/loi-electorale-de-la-rdc-la-fraude-corrompt-tout-jb-kongolo/.
[5] Samy Badibanga and Bruno Tshibala.
[6] Kongolo, JB. 2018. Révocation des magistrats faussaires : le mal est resté intact, In http://afridesk.org/fr/magistrats-diplomes-congo-kinshasa-a-recrutes-jb-kongolo/.
[7] Idem. 2018, Des magistrats sans diplômes au Congo-Kinshasa : qui les a recrutés?, In http://afridesk.org/fr/magistrats-diplomes-congo-kinshasa-a-recrutes-jb-kongolo/.
[8] Ibid, 2018, J.Kabila et B.Tshibala achèvent de désorganiser le Pouvoir judiciaire, In http://afridesk.org/fr/j-kabila-et-b-tshibala-achevent-de-desorganiser-le-pouvoir-judiciaire-jb-kongolo-mulangaluend/.
[9] Selon Dalloz-actu-étudiant.fr : « Il s’agit d’un jugement pris à titre accessoire, par un juge déjà saisi, afin de préparer ou attendre la solution du litige principal. », In https://actu.dalloz-etudiant.fr/le-saviez-vous/article/quest-ce-quun-jugement-avant-dire-droit/h/a4f2a9e0a18669b8ff43982262cd30f3.html.
[10] Kongolo, JB. 2015. Cour constitutionnelle ou caution de violation de la Constitution ?, In http://afridesk.org/fr/cour-constitutionnelle-ou-caution-de-violation-de-la-constitution-jean-bosco-kongolo/.
[11] Alain-Joseph Lomandja, Mensonges d’Etat et impasses actuelles du processus électoral au Congo de Joseph Kabila. DESC, 7 juin 20148. http://afridesk.org/fr/mensonges-detat-et-impasses-actuelles-du-processus-electoral-au-congo-de-joseph-kabila-aj-lomandja/.
[12] Alain-Joseph Lomandja, Anomalies et questionnements sur les statistiques du fichier électoral publiées par la CENI. DESC, 9 mai 2018. http://afridesk.org/fr/anomalies-et-questionnements-sur-les-statistiques-du-fichier-electoral-publiees-par-la-ceni-aj-lomandja/.
[13] According to the former Gabonese President Omar Bongo.
[14] Boniface Musavuli, Kabila-2018 : Le pouvoir ou le pouvoir, il va tenter le diable. DESC, 10 janvier 2018. http://afridesk.org/fr/kabila-2018-pouvoir-pouvoir-tenter-diable-b-musavuli/.
One Comment “Congo-Kinshasa: Elections in a failed state: an aberration – JB Kongolo”
GHOST
says:¤ BUILDING STATE”, LE CAS DE L´AFGHANISTAN
Après les attentats de New York, les USA comme “leader nation” ont fait la guerre en Afghanistan et ont renversés les Talibans. L´aspect le plus utile pour les congolais est le processus pour “construire un État” dans ce pays.
¤ LA TRANSITION POUR CONSTRUIRE UN ÉTAT ?
Etrange paradoxe… En Afghanistan, les USA et l´OTAN ont misés avant tout sur la “démocratie” afin de refaire l´État en Afghanistan. L´approche dans ce pays était basée sur les élections où Hamid Karzai avait gagné et deviendra président.
> Nous ne comprenons pas cet retour au schemat de la “Conférence Nationale” où on met (pour ainsi dire) la constitution entre parenthèse.
L´approche de l´Afghanistan où les élections se sont basées sur la constitution, une nouvelle constitution est plus réaliste que cette approche où les congolais se passent de la Constitution et s´imposent des dirigeants sans mandat électif.
Construire un État devrait se baser sur un minimun de respect de la constitution. Cette transition qu´on tente d´utiliser pour constuire l´État est en quelque sorte une “révolution” dont les congolais devraient payer le prix en terme de violence politique.
Tandis que les élections, même mauvaises posent les bases d´une construction de l´État basée sur un mandat électif, gage de legitimité internationale et nationale.
Entre une “révolution” et un retour vers la CNS, “building state” sans démocratie, sans légimité internationale et nationale.. WAIT AND SEE