Violation of the Constitution of the DRC : by action and by omission
By Jean-Bosco Kongolo
One by one, African countries stand out from the list of states that promote the force of the law to finally deal with existential problems of their citizens and development required by modern life. With her Constitution, the most democratic on the continent, the Democratic Republic of Congo – Kinshasa is still, paradoxically, in search of a dialogue as way forward for its implementation. While the Constitution clearly beacon towards political change by limiting unequivocally number and length of presidential terms, Congolese politicians are only a few months of the end of the mandate of the president, there is still a need to beg him so that it comes out clearly that he will not be candidate in 2016. Some even propose that to release democracy, a tailor-made special law should be adopted to provide a Special Statute to former Presidents [1], as to paraphrase one of our proverbs that can be translated like : “let us cover excrement and just pick up ants around”.
Timidly, the opposition threatens to simply empeach the President of the Republic for violation of the Constitution while avoiding pronouncing the appropriate term : the high treason. And yet this Constitution, by which all Congolese can claim to power, has planned everything about it : the facts constituting the offense of high treason for violating the Constitution, the person referred, referral mechanisms of Constitutional Court, judicial institution to know, as well as the sanction that il is dismissal. If it was not a banana republic, it’s a long time that these mechanisms should have been triggered, as the Constitution has been violated several times since its implementation in 2006.
To make reading not to appear as a daunting task for many readers we want, this analysis proposes, unfortunately, to consider only the most recent facts constituting the offense of high treason, which show that at several levels, per share and by omission, we (Congolese) are mostly artisans or willing victims of dictatorships which follow (do not mince words).
What is meant by high treason ?
During his life, everyone makes at least one unfortunate experience of being betrayed and betrayal is so badly resented because, most often, it comes from people who are close to us or in whom we invested all our confidence.
The Constitution is so important for the life of the nation, it is the duty of every person to respect (art. 62), that is to say, respect all its provisions. In other words, no one is allowed to rape under threat of penalty. To avoid misunderstandings, the Constitution itself defines, though briefly, what is meant by high treason (art. 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.”
The other provisions referred to above and which refer to high treason are Articles 63, 188 and 190, which provide :
Article 63 : “All national, provincial, local and customary authorities have the duty to safeguard the unity of the Republic and the integrity of its territory, subject to punishment for high treason.”
Article 188 : “The Armed Forces are republican. They are at the service of the entire Nation. No one may, under sentence of high treason, abuse them for their own purposes. They are apolitical and subject to civil authority.”
Article 190 : “No one may, under sentence of high treason, organize military groups, paramilitary or private militias, or entertain a youth army.”
It is clear from reading all those provisions that although the duty to respect the Constitution rests with any person, the offense of high treason applies only to a few people, because of their position within the state or due to their activities related to the armed forces.
Persons covered by the offense of high treason
Within the framework of this analysis, we will talk about high treason only in regard to the violation of the Constitution linked to the President of the Republic as described in paragraph 1 of Article 165 cited above. But why only the Head of State ? The answer is to be found both in the mode of election which is universal suffrage (art. 70) and in the importance and significance of his role.
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.”
The Constitution is impersonal, as indeed must be all the texts of laws, the President of the Republic mentioned in this text is the elected Congolese or the person that the people of this country will democratically elect to represent the nation and exercise all the functions that the Constitution recognizes for those purposes. In order that the person elected President of the Republic does not abuse his election and his role as representative of the nation, the settlor has taken the precaution of requiring that solemnly prepared the following oath (Art. 74) : “Me … (Mende, Muzito Matungulu, Katumbi, Tshiani, Boshab, Kamhere, Fayulu, Tshisekedi Kin Kiey), elected President of the Democratic Republic of Congo, I solemnly swear before God and the nation – to observe and defend the Constitution and laws of the Republic; – To maintain its independence and integrity of its territory; – To safeguard national unity; – Not be guided only by the general interest and respect for the rights of the human person; – To devote all my strength to the promotion of the common good and peace; – To complete, fair and faithful servant of the people, the high office entrusted to me.” Most importantly, it is not by chance that this oath is received by the Constitutional Court.
Article 163 : “The Constitutional Court is the criminal court for the Head of the State and the Prime Minister in the cases and conditions provided by the Constitution.”
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.”
The impeachment mechanisms of the President of the Republic in the Constitutional Court
Given its role in the nation, the Constitution provides that impeachment of the President of the Republic in the Constitutional Court for high treason be entrusted to both Houses of Parliament, joint in Congress session, under the provisions of the paragraph 1 of Article 166 : “The decision to prosecute and the bringing of charges against the President of the Republic and the Prime Minister are voted by a two-thirds majority of the members of Parliament assembled as Congress in accordance with the procedure provided for by the internal regulations.” We will return.
What about the current President of the DRC, Joseph Kabila ?
This is the taboo subject that nobody, especially locally in the Congo, in the opposition as in the camp of power, do not dare ask publicly for fear of disappearing without trace or at least of being sued for infringement the security of the state, for inciting subversion, to attack and plotting against the Head of State and any other imaginable charges the ANR and other intelligence services are known to artificially make. Ask this question is more than enough to attract lightning and hate from those who, including friends and acquaintances, can not give up the privileges obtained merely because of the presence of Joseph Kabila as Head of the country.
Already, some did not hesitate to write to us (we have noted) to ask us to leave them alone because “they do not need our analyzes.” Others believe and are convinced that we drive for the opposition (actually we drive for democracy and the rule of law in our country). Still others are waiting in turn for sacrifice ourselves on the altar of their interests. Still others, confusing the President of the Republic and their parents, as we know, made us openly that it is through him and to him alone that despite everything we write, they find bread for their children.
Yet all parents and the majority of the Congolese people do not agree. Therefore, due to patriotism, and convinced that behind the scenes, even the singers (tenors) of the “kabilisme” agree with what we support, we decided to break the ice and we expose for intended Congolese, who are more and more reading us and aware of the totalitarian drift of the facts constituting the offense of high treason on the part of President Kabila. We chose to mention only the most recent developments that are much ink and saliva.
The appointment of special commissioners
The act, order appointing the Special Commissioners, was laid on October 29, 2015 in Kinshasa, city with that name and capital of the Democratic Republic of Congo. It is signed by Joseph Kabila, President of the Republic and countersigned by Matata Ponyo, Prime Minister. To justify these appointments, the signatories of this ordinance took all Congolese people for idiots basing their action on particular pieces of legislation that make no allusion to the title of “Special Commissioner” invented in order to execute a hidden agenda :
«Vu la Constitution, telle que modifiée par la loi no11/002 du 20 janvier 2011 portant révision de certaines dispositions de la Constitution de la République Démocratique du Congo du 18 février 2006, spécialement en ses articles 3, 4, 69 alinéa 3 et 81;
Vu la loi de programmation no15/04 du 28 février 2015 déterminant les modalités d’installation de nouvelles provinces;
Vu la loi no 08/012 du 31 juillet 2008 portant principes fondamentaux relatifs à la libre administration des Provinces, en son article 66 alinéa 2;
Vu l’Ordonnance no 12/2003 du 18 avril 2012 portant nomination d’un Premier Ministre;
Vu l’Arrêt no R.Const. 008/2015 de la Cour Constitutionnelle rendu le 08 septembre 2015 sur requête du 29 juillet 2015 de la Commission Électorale Nationale indépendante; »
Careful reading, with the brain rather than the heart, of all these texts and the invoked judgment of the Constitutional Court gives no indication, even in their transitional provisions, where it is expected the appointment of Special Commissioners run the provinces from the dismemberment. How can it be possible, legally speaking, in the same country, there is provincial (5) led by governors “elected”, reporting to the Provincial Assemblies and other (21), runned by “Special Commissioners” appointed by the central government and logically accountable to the government ? Let’s examine this text by text. – In the text of the Constitution, Articles 3 and 4 invoked in the presidential order say this :
Article 3 : “The provinces and the decentralized territorial entities of the Democratic Republic of the Congo possess legal personality and are managed by local authorities. These decentralized territorial entities are the city, the commune, the sector and the chiefdom (la chefferie). They enjoy administrative freedom and managerial autonomy with regard to their economic, human, financial and technical resources. The composition, organization and functioning of these decentralized territorial entities as well as their relations with the State and the provinces are determined by organic law.” Article 4 : “New provinces and territorial entities may be created by dismemberment or by reorganization under the conditions prescribed by the Constitution and by law.”
The paragraph 3 of Article 69 that we reproduced above and that we resumed says the President of the Republic : “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.” It is very important to note that the preceding paragraph (paragraph 2), it is stated that the President of the Republic “ensures the respect of the Constitution”. In the mind of President Joseph Kabila, ensre the respect of the Constitution, is to create all political and administrative disorder.
Finally, Article 81 which states merely to list, without mentioning the Special Commissioners, let alone the provincial governors, senior administration officials, military, police and officials of services and public institutions should be appointed by the President of the Republic : “Without prejudice to the other provisions of the Constitution, the President of the Republic appoints, suspends and if necessary, dismisses, upon a proposal by the Government after deliberation by the Council of Ministers : – the ambassadors and special envoys ; – the general officers and higher ranks of the armed forces and the national police, after hearing the High Defense Council ; – the General Chief of Staff, the Chiefs of Staff and the commanders of the main branches of the armed forces, after hearing the High Defense Council ; – the high-ranking civil servants ; – the persons in charge of the public services and establishments ; -the representatives of the State in the public companies and entities, with the exception of auditors. The ordinances of the President of the Republic issued on these matters are countersigned by the Prime Minister.”
All serious lawyers and assiduous law students, as well as all intellectual worthy of the name, can remember that since the entry into force of the Constitution to which it’s maliciously refered, the provinces should only be led by the Governors, elected (not appointed) by members of Provincial Parliament in accordance with Article 198 paragraph 2 [2].
In principle, it would be surplusage to examine the other texts to which reference is made in the prescription rider since, under penalty of nullity, no law can be contrary to the Constitution. But to better inform the public, we address all the same to bring out the contradictions.
- The planning law determining the terms of installation of the new provinces (La loi de programmation déterminant les modalités d’installation des nouvelles provinces)
Although they refer to it, the signatories of the order of appointment of the Special Commissioners have found themselves in this law nothing to invoke to justify their decision. No need to linger there us because actually there is none. We simply imagine that they are referred to embellish it a little their prescription.
– La loi no8/012 du 31 juillet 2008 portant principes fondamentaux relatifs à la libre administration des Provinces
The preamble of this law for information that it intended to set “the fundamental principles for the free administration of the province and the autonomous management of its human resources, economic, financial and technical, in accordance with Article 123 of the Constitution. “By reading this law, it is discovered that the signatories of the order have consciously avoided to refer to article 23 paragraph also 3 that has sound in the Constitution that” The Governor and the Deputy Governor are elected for a five-year term renewable once by MLAs within or outside the provincial assembly. They are invested by the order of President of the Republic. “Article 123 of the Constitution referred to here is that which, in the distribution of materials between the central government and the provincial government, simply lists the matters which fall within the law, ie the national legislature while Article 66 paragraph 2, cited in the order for information that: “The actions of the Provincial Governors in these materials are subject to avoidance.
If necessary, the central government can reform or replace the authority of the provincial governor. “Cheating, monstrously blatant, results from the fact select on the fly provisions, omitting other yet complementary, just to create confusion. Indeed, article 66 can have meaning and justification in that order that, it supplements Articles 64 and 65 (not quoted) that precede it and here are the labels :
Article 64 : “In matters within the exclusive jurisdiction of the central government, the provincial governor coordinates and supervises services under the authority of the central government.”
Article 65 : “In carrying out its mission of representing the central power and coordination of decentralized public services in the province, the provincial governor is accountable to central government.”
By referring only to paragraph 2 of Article 66 of the Act, the President of the Republic and the Prime Minister have intentionally violated this law, as they did with the Constitution, by appointing senior officials provinces and pasting them the title of “provincial commissioner” that does not exist anywhere in Congolese positive law, as if this law gave them that power.
– L’Ordonnance no12/2003 du 18 avril 2012 portant nomination d’un Premier Ministre
Again, the signatories of the notice of appointment of special commissioners were careful to designate the provisions of this Ordinance which they intend to apply to justify its invocation in the appointment of special commissioners.
– The Famous ruling of the Constitutional Court of July 29, 2015 also can not be a good reference to some amazing causes irregularities which have been the subject of being more relevant criticism from lawyers reputable. [3] As a reminder The High Court had assumed the jurisdiction nowhere under the Constitution to regulate political life on the one hand and on the other hand, it had exceeded the subject of the petition submitted by the CENI, herself even unskilled to grasp in terms of statutory interpretation (Read about the articles 160 and 161 of the Constitution.) [4]
However, one thing is to demonstrate that the President of the Republic and the Prime Minister have intentionally violated the Constitution, another, more important, is to find out what should be the attitude of all the players concerned by this issue of national scope that could, if no action is taken, tear the country again and ignite.
What it will then happen ?
– On the side of both houses of Parliament, a joint session to clear two thirds of members required, there is nothing positive to expect from most senators (all with otherwise exhausted their mandate) and with several MPs again proved which side they lean whenever it came to choose between the best interests of the nation and their digestive tracts. If they really love the country, it is time to act, otherwise, they too violate the Constitution by omission.
– For its first major test in constitutional matters (File CENI)), the Constitutional Court has also shown that we can not rely on it to build a state of law and advancing democracy. As a gratitude to the Head of State who appointed them, without some merit, members of the “High Court” drunk with milk, knowingly condoned elementary notions of inadmissibility proceedings to quality defect or force majeure, that even second-year law student would receive as exam questions to improve their grades. These high judges have mostly forgotten that the justice of the Third Republic is made not in the name of the Founder President of the MPR or any individual, but for the people (art. 149 and 150 al.3 of al.2 Constitution). [5] Their decision especially recalls the confusion earlier by the Supreme Court, acting as Constitutional Court, during the electoral disputes of 2011. For the record, it’s only a few weeks of holding the 2011 elections that 18 judges were appointed the CSJ and 14 others to the Prosecutor General of the Republic. Most of them were in violation of the Constitution and the status of judges, which require that the Superior Council of Magistracy in make proposals. This he explain that? To each to respond. However, the senior judges of the CC have a second chance to catch up not only to honor but to ascend to the world that the Congolese justice can cover is able to assert its independence vis-à-vis the executive . Do not do it, it is also obscure the Constitution by omission. In this case, they can be sure that history will be taught to future generations, retain their démocraticide passage within this prestigious judicial institution.
– So, should we sit back and let the offense of high treason be consumed with impunity until the installation of a new dictatorship? Absolutely not, because there are still people in the ultimate means available to it by the Constitution itself in Article 64 which states : ” 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.” Evoid to fill this civic duty is a collective violation of the Constitution by omission and prove that the dictatorship is an integral part of our political culture. This is not the international community or even less Burkinabé who will do it for us.
We are aware that in the Congolese context, all these denunciations we can assert our lives. But if this might be the price to pay for the country we love, that this analysis serves as a testament to bequeath to the nation for the advent of democracy and the rule of law. We believe we have done our part, everyone to his own starting with ensuring wide dissemination (through the media and social networks) of this patriotic call across the country and in the diaspora. It will not be the subversion but the exercise of a civic duty.
Conclusion
Because of ignorance and naivety, everywhere we saw the people, organized on ethnic lines and even clan, celebrate their “Special Commissioners”. We even received emails giving us the telephone number of “our Special Commissioner” so that we could congratulate them. Now that this analysis illuminates in fact and in law that the order appointing these politico-administrative provincial authorithies, invented to remain in power, Joseph Kabila does’nt respect his promise to ensure respect of the Constitution. It is time, before it be too late, that the mechanisms of his indictment for high treason be quickly triggered to have him removed. Otherwise, the people draws its energy supply and patriotism (art. 64 of the Constitution) to smother the implementation of a new dictatorship in our country.
Jean-Bosco Kongolo M.
Jurist & Criminologist
(Original text is in French)
References
[1] L’Avenir, 09/10/2014, http://www.radiookapi.net/revue-de-presse/2014/10/09/lavenir-aux-prochaines-presidentielles-statut-special-pour-le-meilleur-perdant-simpose, La Prospérité recalls that not long ago, MP Clement Kanku wa Bukasa Tshibuabua, leader of the MR, caused a great stir in the political microcosm offering a special status in law book to former Presidents of the Republic.
An initiative declared irrelevant in the eyes of Jacques Mokako that thinks, rather, that the Constitution has already solved that problem, when actually the ancient Presidents elected at the end of their mandates, are lifetime Senators, the newspaper continues.
[2] The Governor and the Deputy Governor are elected for a term of five years renewable once by members of Provincial Parliament within or outside the provincial assembly. They are invested by order of the President of the Republic.
[3] Jean-Bosco Kongolo M., Cour constitutionnelle ou caution de la violation de la Constitution?, http://afridesk.org/cour-constitutionnelle-ou-caution-de-violation-de-la-constitution-jean-bosco-kongolo/. Journal Le Congolais’ 13 sept. 2015, http://www.lecongolais.cd/lutundula-accuse-la-cour-constitutionnelle-davoir-bloque-le-processus-electoral/. Le Phare, 14 sept. 2015, Me Mayo relance le débat : La Cour constitutionnelle a mal jugé, http://www.lephareonline.net/le-depute-mayo-relance-le-debat-la-cour-constitutionnelle-a-mal-juge/.
[4] Article 160 : The Constitutional Court is charged with the control of the constitutionality of laws and of measures having the force of law.
Organic laws prior to their promulgation and the internal regulations of the parliamentary Chambers and of Congress, of the Independent National Electoral Commission as well as of the High Council for Audiovisual Media, prior to their application, have to be submitted to the Constitutional Court which rules on their conformity with the Constitution.
For the same purpose of examining their constitutionality, statutes may be referred to the Constitutional Court prior to their promulgation by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate or a tenth of the Deputies or Senators.
The Constitutional Court must decide within the period of one month. However, in cases of urgency, this delay is reduced to eight days at the request of the Government.
Article 161 : The Constitutional Court examines the applications for interpretation of the Constitution upon request by the President of the Republic, the Government, the President of the Senate, the President of the National Assembly, a tenth of the members of each Parliamentary chamber, the provincial Governors and the Presidents of the Provincial Assemblies.
It settles disputes relating to the presidential and parliamentary elections as well as to referendums.
It examines conflicts of jurisdiction between the Executive Power and the Legislative Power as well as between the State and the Provinces.
It examines the appeals against the judgments of the Court of Cassation and the Council of State, but only insofar as they decide on the reference of the dispute to the general or the administrative jurisdiction. This appeal is only admissible if an objection of denial of jurisdiction has been raised by or before the Court of Cassation or the Council of State.
The details and the effects of the remedies referred to in the preceding paragraphs are determined by law.
[5] Article 149, alinéa 3 : “Justice is administered on the whole of the national territory in the name of the people.”
Article 150, alinéa 2 : “In the exercise of their functions the judges are subject only to the authority of the law.”
One Comment “Violation of the Constitution of the DRC : by action and by omission – Jean-Bosco Kongolo”
sulutani la passion du Congo
says:Thank you Compatriote kongolo, we are aware of all that Mr Kabila and his disciples are doing to kill the young the democratie but him and his followers will be suprised soon, they will discover that they had never controled our mind as they maybe thing