DR Congo-Badibanga : Towards an Unconstitutional State
By Boniface Musavuli
The Congolese discovered, on November 17, 2016, the name of the new Prime minister in the person of Samy Badibanga, elected MP in the constituency of Mont-Amba/Kinshasa. The nomination took place thirty-two days before the end of President Kabila’s second and last term, and thirty days after the signing of a political agreement between the government and a minority fringe of the opposition at Camp Tshiatshi. On form, the act of nomination intrigued as it was not signed by the President of the Republic, as to hold the new host in poor esteem. This was the first thorn that would hurt the coming government, whose history will remember that it was ostensibly deprived of any form of legitimacy, becoming, in fact, the incarnation of an “unconstitutional State”. Born into the confusion of meetings and betrayals of all kinds, this government would be a challenge to people who, according to the logic of the regime, should resign himself face to the scandalous and repeated violations of his Constitution.
In this analysis, we will recall the bases of the legitimacy of the Prime Minister, in accordance with the Constitution, and the drift initiated by the act of nomination of the new Prime Minister. It’s an approach that consists in not to give free rein to an insidious discourse that wants the political arrangements and councils replace the fundamental laws, and lead toward an unconstitutional order, that is to say to the jungle [1].
A Prime Minister with no bases of legitimacy
When, in December 2005, the Congolese adopted the Constitution by referendum, they had spent months debating and identifying those responsible for their misfortunes : the country’s institutions and the men in power. These ones were long time illegitimate and disputed so that the country was plunged into endless wars and untold suffering. The “legitimacy of the institutions and their leaders” is the first fundamental principle that will be engraved in the marble of the new fundamental law [2] . The formula that best sums up the Constitution of the DRC is that “never again the country will be in the hands of the authorities whose legitimacy is disputed ! ” But only eleven years after the referendum, here is Mr. Samy Badibanga ! A Prime Minister whose legitimacy, in comparison with the Constitution, is due quite simply of nothing.
As a reminder, Article 78 of the Constitution sets out the profile of the Prime Minister as a personality whose power rests on several bases of legitimacy [3]. He must be from the majority coalition in parliament, which is not the case of the new Prime Minister [4]. Then he must be appointed in accordance with the Constitution. That is to say an ordinance duly signed by the President of the Republic to whom the Constitution requires to choose only in the ranks of the parliamentary majority [5]. The nomination of an opponent is an act openly anticonstitutional, which means that the new Congolese Prime Minister begins his functions in an ostentatious violation of the Constitution. On the other hand, it is not in vain to recall that, given the political context, this nomination comes at a time when a president at the end of the mandate is not in situation to engage the nation on such serious subjects which affect the balance of the institutions.
Indeed, despite a deaf ear shape, we must remember that December 19, 2016 is still the date that president Kabila leaves the power in accordance with the Constitution. The political agreement of Camp Tshiatshi is not supposed to replace the fundamental law. It is a document that was signed by a group of political partners outside of any institutional framework. This text is neither a law [6], neither a decree [7] nor an international agreement, and is not published in the Official journal. It is not supposed to have the force of law and apply as a “legal norm” to all Congolese. It is opposable only to its signatories. A government can not, without sham, claim the right to exercise the sovereign powers, relying on a text signed outside the institutions. Except in a coup d’Etat scenario. The agreement of October 18 offers the new Prime Minister only an illusion of legitimacy, faced with the current Constitution whose the Congolese continue to claim respect in all its provisions.
But it must be admitted that much will be needed since even the Constitutional Court has become a zealous actor in the march towards an “order” freed from the constraints of the Constitution.
A Constitution “betrayed”
All this could not happen without the knowledge of the highest institution of the country in charge of ensuring compliance with the Constitution. The Constitutional Court has seen the crisis coming legitimacy and failover in the “jungle”, but left to do, the better. At the worst, it has delivered judgments that are such as to enshrine the triumph of a conflictual environment, which, nevertheless, served it. Since it loses control over the conduct of institutions. The jurist Jean-Bosco Kongolo recalls the three acts by which the Court had actively worked for the slip towards this order freed from the fundamental law [8].
First, it issued a questionable judgment in September 2015 [9], on a referral of the National Electoral Commission (CENI), an institution which did not even have quality [10] as to announce servility vis-à-vis the “whims” of power. In May 2016 the Court issued a second judgment under which it assured President Kabila that he would remain in office if the elections were not organized within the constitutional deadlines [11]. It completes to ensure the slip by granting to the CENI the right to defer the convocation and the organization of the elections[12] to an unspecified date. It was a surrealist decision [13] as early as February 2017, all institutions of the DRC will be in the hands of leaders outside mandates, for lack of elections hold within the time prescribed by the Constitution. Indeed, the mandate of the President of the Republic will have expired since December 19, 2016. That of the senators, it must be remembered, has expired for an eternity : February 2012. It remained the mandates of the deputies that, too, will have expired In February 2017. The country will have to operate according to fuzzy rules between political actors. Rules and political actors over which the Constitutional Court will have no influence. Naturally, among the political actors – on which the Constitutional Court will have no decision – will appear “the Congolese people” in all his imperceptible dimension, asserting the right to dispute the legitimacy of the institutions and their [14]. A challenge to which foreign powers should join. Their efforts to carry out Congo in its current situation of relative pacification, justify, in many ways, their interference in the internal affairs of the DRC. We will come back.
Legitimate protest and date with history
The non-observance of the Constitution ensures president Kabila, his new government (to come) and their allies some ability to act free hands, but this comfort is, essentially, hypothetical. The current Constitution, which has its defects like all the others, will continue to profit from its two major assets : an international legitimacy and a popular legitimacy. On the international plan, this Constitution is the result of large efforts to put an end to the armed conflicts which devastated the country and political instability. Many States and international institutions were implied in these efforts that only the Congoleses could not agree. Consequently, external partners of DRC consider, rightly, that any approach aiming at sabotaging “the fruits of their efforts” is a taking risk unacceptable which could plunge Congo in a new crisis which will oblige them to return, to provide the same efforts of pacification [15]. The other pillar of the legitimacy of the Constitution is that she is regarded by the majority of the Congoleses as an asset, the structuring base of the Rule of law to which they aspire. In 2005, they were 85% to approve it by referendum. Flouting this Constitution means to devote a situation of jungle that they are not willing to condone. In two occasions, the Congoleses have been in the streets to require the strict respect of their Constitution, until the supreme sacrifice [16]. They are, again, given go in December 2016, and beyond, untill the departure of President Kabila who obviously seems inspired by the end of Mobutu’s reign.
Indeed, when a regime in bad shape tries to ensure its survival, a certain perversion in the Machiavellian calculations consists in debauching “opponents” and appointing them in the government to make them take responsibility for the repression to come. The Congo would thus be able to repeat the painful experience of the 1990s, when the ending Mobutu regime used the government of former opponent Nguza Karl-I-Bond to repress the popular march of Christians in the streets of Kinshasa. The Congolese have again go with the history, it does not matter what think the new Prime Minister.
Boniface Musavuli
ESCR Coordinator
Exclusive to DESC
References
[1] The jungle is an environment where the strongest individuals impose their will and where less able to fight are sacrificed. Out of the framework laid down by the Constitution, the regime of President Kabila draws Congo into a political and geopolitical environment governed by the vagaries of permanent confrontations and precarious balances. Indeed, even foreign powers will be led to become more and more openly involved in the Congolese political game. For better and for worse.
[2] EXPLANATORY MEMORANDUM TO THE CONSTITUTION OF 18 February 2006: Since its independence on 30 June 1960, the Democratic Republic of Congo is facing recurrent political crises, one of the root causes is the challenge to the legitimacy of institutions And their leaders. This challenge has taken on particular importance with the wars that tore the country from 1996 to 2003. In order to end this chronic crisis of legitimacy and give the country every chance to rebuild, the delegates of the political class at the Global and Inclusive Agreement signed in Pretoria, South Africa on December 17, 2002, a new political order based on a new democratic Constitution on the basis of which the Congolese people can choose their leaders sovereignly, after free, pluralistic, democratic, transparent and credible elections.
[3] Article 78 : 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.
If such a majority does not exist, the President may entrust an exploratory mission to a person with a view to identifying a coalition.
The exploratory mission is limited to thirty days, renewable once.
The President of the Republic appoints the other members of the Government and terminates their functions upon proposal by the Prime Minister.
[4] M. Badibanga sits in the parliament in the ranks of the opposition (UDPS and allies).
[5] “parliamentary majority” not to be confused with “Presidential Majority” that is “a great amalgam of political parties without ideology and having no other common denominator than the person of Joseph Kabila as long as it is still the President of the Republic “. See JB Kongolo, “Reasons to worry about the mediocrity of some Congolese elite” http://afridesk.org/fr/des-raisons-de-sinquieter-de-la-mediocrite-dune -certaine-elite-Congolese-jb-kongolo / # _ ftn2 .
[6] The Parliament has not been seized.
[7] The President has not signed.
[8] JB Kongolo, “Alert DESC: Presidential Majority – INEC – Constitutional Court: the triangle of high treason,” http://afridesk.org/fr/alerte-desc-majorite-presidentielle-ceni-cour- Constitution-the-delta-de-la-high treason / .
[9] Judgment R. Const. 0089/2015 of 08 September 2015, comment Jean Baudouin MAYO MAMBEKE, 7sur7.cd/new/le-depute-mayo-relance-the-debat-la-cour-constitutionnelle-a-mal-juge/.
[10] Section 161 of the Constitution confers limited referral authority to the President of the Republic, the Government, the President of the Senate, the Speaker of the National Assembly, one tenth of the members of each parliamentary chambers, Provincial Governors and Presidents of Provincial Assemblies. The CENI is not on the list.
[11] Judgment RCONST / 262 of 11 May 2016 Comment JP Kasusula, jpkasusula.over-blog.com/2016/06/analyse-critique-de-l-arret-de-la-cour-constitutionnelle-sur-la- End-of-the-mandate-of-joseph-kabila-y-it-was-high-treason.html.
[12] http://groupelavenir.org/a-la-cour-constitutionnelle-la-ceni-obtient-le-report-de-la-convocation-et-de-lorganisation-des-elections/ .
[13] The Constitutional Court caused a scandal by sitting with only five judges on the minimum quorum of seven prescribed by law. Two judges of the High Court, Professors Vundwawe Te Pemako and Jean-Louis Esambo had been reported absent from the sitting while they were in Kinshasa.
[14] 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”.
[15] This is why countries like the US and France demand democratic change and exert pressure that will continue to grow by December 2016, and beyond, if Kabila remains in power. The United States has begun to impose sanctions on members of the regime who are considered to be primarily responsible for the repression and blockage of the electoral process. See “DRC No Trump Effect for Joseph Kabila”, www.parismatch.com/Actu/International/RDC-Victoire-de-Trump-fausse-bonne-nouvelle-for-Joseph-Kabila-1118456
[16] The popular uprisings of January 2015 and September 2016 were the subject of repression whose caused around 100 deaths.
One Comment “DR Congo-Badibanga : Towards an Unconstitutional State – B. Musavuli”
Johannes Onomo Friedman
says:I would like to thank Dear Boniface Musavuli for dedicating his time and effort for writing this article. It’s truly a pleasure and a joy. Well, this scenario (Badibanga nomination) is in my view one of the worst political betrayal ever happened in our homeland, DRC. The “1 + 4″ was in fact the remedy or the cure to heal, once for all, the bloody turmoil and civil wars which damaged our country stability and reputation. As a ” pacificateur”, Kabila would have left a tremendous “legacy” by organising the elections in due time and would have stepped down as requested by the Constitution. Unfortunately, he destroyed what he himself built in. What a tragedy! The end is going to be dramatic even much worse than Mobutu.