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How Congo’s president is trying to flout the constitution and stay in power

- December 3, 2015

In November 2016, Congo is scheduled to hold presidential elections — at least, according to the constitution. However, this constitution has increasingly been challenged by incumbent President Joseph Kabila, as it constitutes a stumbling block to his continued efforts to stay in power. Congo’s 2006 constitution limits a president’s tenure to two popularly elected five-year terms. His time in office is supposed to come to an end in November.

This struggle is important for more than one reason: the constitution was established after the years-long struggle against the Mobutu dictatorship, and constitutes a check against a return to these practices. It is the result of several decades of efforts to introduce the rule of law against the arbitrariness of personal rule, in tune with a similar movement in other African countries.

However, the Kabila regime has grown increasingly intolerant towards actors advocating for these constitutional requirements. Instead, Kabila and his closest allies are using an expanding and inventive array of institutional and political mechanisms to extend his tenure in office. Initially, the president tried to implement a strategy called slippage or “glissement,” which refers to administrative measures whose ultimate aim is to postpone the elections. In this piece, we aim to show how this has been increasingly complemented with a strategy to subdue the various legislative and executive powers of the Congolese state to the president’s personal authority – a strategy in which the constitution is merely a stumbling block.

At first, Kabila tried to delay the elections by pushing for an electoral law that would make the elections dependent on the organization of a large and time-consuming national census. Doing so would have pushed the election date far beyond 2016. This strategy backfired due to mass protests in January 2015. Afterwards, several attempts were made to prioritize the organization of long-overdue local elections (which were originally scheduled for 2006 and have yet to happen) requiring a huge commitment of financial, administrative and logistical resources. As this would overstretch the country’s already-weak administrative and financial capacity, holding local elections would also postpone the 2016 legislative and presidential elections for an indefinite amount of time.

During the last few months, Kabila and some key cabinet ministers took their efforts a step further with attacks on legislative and judicial institutions. First, during an extraordinary parliamentary session in July and August, the National Assembly and the Senate forcibly voted a law which was criticized for being technically deficient, and particularly for giving unreasonable advantages to the presidential party PPRD through manipulation of the representative mechanism.

Second, the splitting up of six of the current provinces into 21 new ones, a process that, constitutionally, should have been implemented before 2011, was hastily completed in July 2015 without any budgetary provisions, creating chaos for regional-level governance. The government refused to organize the election of the new governors for the new provinces, and after the dismissal of the former governors, the provinces were left with no one formally in charge. This was intentional; weak local institutions cannot pose any pre-electoral threat.

In another worrying development, Congo’s Constitutional Court entered the debate about the new provinces. In response to a request for advice from the Independent Electoral Commission (CENI), the Constitutional Court went far beyond its constitutionally defined role and ordered the government to take “exceptional transitory measures to ensure public order and security as well as the continuity of public administration in the concerned provinces.” The government interpreted this ruling as allowing it to appoint special commissioners hierarchically subordinated to the interior minister. In all the newly subdivided provinces, the constitutionally-mandated decentralisation process is being reversed as Kinshasa further centralizes power. For a so-called transition period that can take up to two years, provincial governments are to be replaced by special commissioners and two deputies, while representative provincial assemblies are put on hold.

Most recently, CENI President Apollinaire Malu Malu resigned from his position, partly for reasons related to his health and partly because of the constant pressure from the interior minister to follow Kabila’s commands. His resignation opened the door for an offensive from the majority to replace officials of the commission with loyalists. As a result, CENI’s independence will be severely compromised.

This general evolution is particularly worrying, as it signifies a progressive and pervasive de-legitimization of the institutions created by the 2006 constitution. This in turn highlights the efforts of Kabila to remain in power, as the regime is increasingly repressive toward dissident opinions: His forces arrest opponents, and there are severe limitations on freedom of speech and the press. But repression is not enough for Kabila to win. Since May, he has been trying to convince opposition parties to engage in a political dialogue that will likely result in a compromise, allowing him to modify the constitution – the two-term limit – or simply to introduce a new constitution, where the president would be elected indirectly by an electoral college. On Nov. 9, the president announced that the dialogue was about to start and will try to reach a consensus on the future electoral process – including, according to him, the local elections. The spokesman of the Presidential Majority on Oct.31 already declared that it will take from two to four years to organized “peaceful” elections, something the government later denied.

On Nov. 28, Kabila announced the organization of national dialogue. Instead of postponing the very expensive local elections, he seems to suggest an indirect election of the presidency. This is widely perceived as another strategy to extend his rule. However, it is not at all clear who is willing to participate: The main opposition groups, including the G7, have categorically refused to do so and are calling upon the population to resist.

The Congolese are not passive in the face of these threats to their fragile democracy. The January 2015 protests against the adoption of the electoral law mentioned above were pivotal; mass protest forced National Assembly members to stop what had appeared to be the inevitable passage of the law. In doing so, the population seemed to have overcome their fear and continued their protests despite the violence used by the security forces. At the moment, the crackdown on opposing voices and popular dissent manages to keep a lid on popular discontent. Yet resentment, fueled by grinding poverty, creates a very unpredictable situation in Congo today. The risk of violence is high. For many ordinary citizens, violence is now the only way to let their voices be heard.

Will a challenger emerge? It seems more likely than not. Recently, a group of individual parties participating in the governing coalition asked the president to respect the constitution and to return to respect for basic human rights like freedom of expression. The so-called G7 group underlines that the president’s strategy to remain in power against all odds is “suicidal.” The members of the G7 group resigned from their roles in the coalition and made clear that they consider their cooperation to be finished when the president clearly refuses to respect the constitution.

Simultaneously, an alternative political voice may be emerging in the person of former Katanga governor Moise Katumbi, who enjoys popularity all over the country and may be able to channel popular anger. However, as the G7 demonstrates, the struggle is not really about Katumbi against Kabila, or about any other political figure. It is about respect for the constitution and the laws of the country. The 2006 constitution is not, as the Presidential Majority now says, a temporary compromise between the warring parties of the 1998-2002 war, but is rooted in a historical struggle for respect for the rule of law and against the establishment of dictatorial personal rule.

Kabila presents himself as a guarantor of stability, but his current efforts to remain in power are jeopardizing this claim. It increasingly creates the perceptions that change is not possible through elections, but rather through violence – which ultimately is a very bleak picture and reminiscent of earlier regimes in Congo.

James Allaire is the pseudonym of an independent specialist in Central African politics. Kristof Titeca is a lecturer at the Institute of Development Policy and Management at the University of Antwerp. You can follow him on Twitter.