DRC Constitutional crises, who is responsible?

Source: Ghana | Maslove Omar-de Pascal
Date: 9th-may-2017 Time:  7:24:59 pm

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The Democratic Republic of Congo (DRC) has postponed its presidential poll which was to be held inNovember 2016 to April 2018 but the incumbent president is still in office.

There were issues with the country's voters register as well as lack of funds.

Observers believe that the Commission ÉlectoraleNationaleIndépendante (CENI) argument that it needed more time to ensure that all elections-related materials (e.g., ballot boxes) could be safely delivered and update the voter registercould deepen the country’s political crisis and exacerbate violence.

In the beginning, the Congolese government said that it didn't have the money to hold election. They later said that there were logistical challenges for them to update the electoral register.

The government of the DRCsays it will push back presidential election, a move that is expected to keep President Joseph Kabila in office until April 2018.

Kabila has promised to postpone theelection.Some Congolese have interpreted this to mean President Kabila wants to cling on to power as long as he possibly can. This they believe will afford the President the opportunity to rig the election. In the minds of the citizens, the decision to postpone the election was more political.

In a surprising twist, the Supreme Court in the country has upheld the decision to postpone the election citing Act 70 of the constitution which states that “at the end of his term, the President stays in office until the President-Elect effectively assumes his functions.”

But the law does not say the incumbent president should remain in office until elections are held to determine his successor. It insteadsays that the incumbent should stay in office until the President-Elect has had the chance to takeover duties of the presidency.

This means Act 70, which presupposes the existence of a President-Elect, does not apply to the situation as it currently exists in the DRC today. There is no President-Elect and hence, the more appropriate section of the constitution to govern the situation in the country should be Act 75 which enjoins the President of the Senate takeover as interim president when President Kabila’s tenure expires.

The court ruled that President Kabila could stay in power if the country fails to hold its election in November 2016 to determine a successor.

The important question to ask though is: Why didn’t the court allow the President of the Senate to serve temporary as the head of state as mandated by Act 75 of the constitution? The same Act states that “in the case of a vacancy, as a result of death, resignation, or any cause of permanent incapacitation, the functions of the President of the Republic...are temporarily discharged by the President of the Senate.”

Obviously, it could be argued that, having completed his constitutionally mandated two terms of five years, President Kabila is either permanently barred from remaining in that position or competing for it. A president limited by the constitution from continuing in office can be considered to be permanently incapacitated and hence this provision should govern the transition problem in the country today.

The appropriate route for the DRC to take particularly one that would minimize sectarian violence and enhance the deepening of its democracy is to strengthen of its electoral system.

The others are that (i) Kabila has to retire as scheduled at midnight December 19, 2016 and he has to handover the apparatus of government to the President of the Senate, Léon KengowaDondo, member of the now defunct Mouvementpopulaire de la Révolution (MPR) as mandated by the constitution. The interim government will then make the necessary arrangements to carry out the elections to select the country’s next president.

However, recent events hint that this outcome is unlikely and that the DRC faces a long, precarious road to 2018 is disappointing.

As it stands, there is likely to violence especially during and after the election over issues ofsuspicion and misunderstanding that could erupt between the government and opposition.

President Joseph Kabila’s stay in power endangers the country’s security and could cause instability. For a war torn country like DRC, some war lords might take advantage of the situation to wage war. This is what the international community has to add its voice to steer the country out of it current constitutional crisis.

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