Painting by Cheri Samba

Lokuta eyaka na ascenseur, kasi vérité eyei na escalier mpe ekomi. Lies come up in the elevator; the truth takes the stairs but gets here eventually. - Koffi Olomide

Ésthetique eboma vélo. Aesthetics will kill a bicycle. - Felix Wazekwa

Thursday, April 14, 2011

Constitutional questions loom large during election season

As we wait (still) for the election commission to publish the new electoral calendar, many wonder what would happen if the results of presidential elections come in after December 6th.

On Radio Okapi, Professor Jean-Louis Esambo, the president of the Association of Congolese Constitionalists (indeed), argued that President Kabila mandate would become "illegitimate but legal." He justifies this mind-bender by referring to Article 70 of the constitution:
The President of the Republic is elected by universal direct suffrage for a mandate of five years, renewable only once. At the end of his mandate, the President of the Republic stays in power until the installation of a newly elected President. 
A bit confusing. In other words, the honorable professor argues that the section about his "staying in power until there is a new president" supersedes the previous section about him only being in power for five years. I'm not a lawyer to take issue with the president of Congolese constitutional lawyers, but the article does seem a bit ambiguous to me. The united political opposition (UNC, UDPS and MLC) certainly thinks so, as they made clear at a meeting two days ago, where they insisted that after December 6th the president would become "illegitimate." Which is different than illegal, as the professor has pointed out. But elsewhere in their speech, they suggested that his continued stay in power would violate the constitution - so it would be illegal?

It is certainly confusing. To make matters worse, the constitutional court, which is supposed to interpret the constitution and make the final call on such matters, has little credibility with the opposition, which sees it as allied to Kabila. I believe they would say it is illegitimate. Not illegal. 


Anonymous said...

As much as i gather that the international community seems slightly disinterested in the DRC elections this time around, perhaps its time they flexed their "muscle" using non governmental organisations and development partners in compelling the government to commit to a free and fair elections.

Anonymous said...

It's a nice idea, but I seriously doubt that non-governmental organisations and development partners would be able to influence the Congolese government. The west are criticised half the time for trying to push so called Western values upon African nations, and when it takes a step back, it is accused of disinterest and not wanting to help. The criteria that exists in the west for free and fair elections, may not be appropriate for certain African nations' fledging democracies. I think they need to evolve within their own environments, with the African people leading the way.

Anonymous said...

Will the African people really lead their way ? With all the dictators,negative ethnicity (tribalism) and poverty hanging over us. Anyway lets hope for the best

Pat said...

The constitutional article isn't ambiguous; it's being misapplied, that's all.

The same principle exists in the US - a new President is elected, and then the lameduck stays on for another two months.

The trouble in Congo is that the elections aren't being held on time, and so there is no way to ensure a transfer of power by the end of 5 years (with or without a lameduck period before then). When you miss deadlines or misapply commonsensical legal provisions, legal experts step in to 'expound' the various interpretations to which any article or legal phrase can be subjected.

As a non-lawyer, you may not be familiar with the wonderfully eloquent phrase 'illegal but legitimate' etc. - that's the wonderful legal nonsense that was used to justify the bombing of Serbia, without UN authorization. These phrases try make sense of something that is - at the end of the day - indefensible at a practical level.

Only in a court of law will such legal jargon fly. Not in a court of public opinion. The Congolese people know what to think of the nonsense that is going on.

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