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

Wednesday, March 31, 2010

Changing Congo's Constitution

It was to be expected: President Kabila had broached the subject of changing the constitution. Of course, this is cause for alarm: Mobutu did the same when he first came to power in 1965, progressively getting rid of multiparty democracy and the checks and balances of a the legislature and judiciary.

This is far from Mobutism, at least for now. We need to update the constitution, as the one approved in 2005 said that 26 new provinces were supposed to be created by December 2009, and 40% of national revenues were supposed to be managed by these provinces. This hasn't happened, so there needed to be an update.

The commission, however, charged by the president to propose a constitutional revision has gone quite a bit further. It submitted its conclusions to the government on Monday, prompting Kinshasa's press to ask: "Is our constitution in danger?" Here are some of the things they want to change:
  • The creation of 26 new provinces
  • The decentralization of 40% of state revenues to the provinces
  • The composition of the National Council of Magistrates, the supervisory authority of judges and prosecutors
  • The proportional representation electoral system
It isn't clear how exactly they want to change these clauses, as far as I can tell. The biggest controversy is the suggestion that the president should preside of the National Council of Magistrates, which would go against Article 220 of the current constitution, which explicitly prohibits any constitutional changes that could undermine the independence of the judiciary. Of course, Kabila will argue that the same council in France is also presided over by the president.

The other controversy is regarding term limits: The commission has delicately suggested that there be "a deep reflection" on the presidential mandate and term limits, which are currently limited to two five year terms. A constitutional change in this sense is also prohibited by Article 220 of the current constitution.

We should remember that the Planning Minister Olivier Kamitatu recently suggested in an interview with Jeune Afrique that it would be wise to get rid of the prime minister, the president needed more power to rule the country efficiently.

I'm not a constitutional scholar, but it always seemed a bit bizarre to insist in a constitution that certain aspects of the constitution couldn't be changed. A constituent assembly could change anything they want about a constitution, after all they created the current one. This is what certain legal scholars like Evariste Boshab, the president of the national assembly, argue. But would they need to convene a special assembly and submit changes to a referendum, or could they just change it according to the dispositions of the current constitution?

The clauses regarding constitutional changes are very weak: Changes (excepting those prohibited by Article 220, I guess) can be pushed through with a simple 3/5 majority, not a very difficult feat for Kabila's AMP coalition.

7 comments:

Emin Pasha said...

Jason--
Did you take down the five myths article? Can I comment anyway on the first myth, about the war not being mostly about minerals?

First, let me say: It's amazing for me to have watched how this observation went from being marginalized to ridiculed to conventional wisdom to stale bread.

Second: There's a sense in which you are right, but I'm not sure whether it's a deep sense or a trivial sense. Nothing as complex as a war can be reduced to a single cause. But the abundance of small-scale, artisanally exploitable mines helps explain why the eastern Congo is such a mess, compared to, say, Katanga--or Central Niger, for that matter. cf Paul Collier's work.

Third, I'm not entirely sure that the minerals weren't there from the start: I remember hearing rumors back in 97, when the AFDL was still handing out visas to the territory it controlled with Disney Lion King motifs on them, that even then some people were murmuring about strange minerals used for secret high-tech purposes. Some of these were the same people who were whispering about hidden massacre sites, which we also found hard to believe. (And which we then fought tooth and nail to get acknowledged.)

Finally, I'll reiterate what I've written earlier: even though I think minerals are a critical part of the explanation for the war, I remain uncertain that they can ever be instrumentalized or harnessed for peace.

Anyway, for what it's worth: as our understanding of the war(s) grows ever more complex and involuted, there is still something to be said for the straightforward. If there were no minerals in the Kivus, the place probably wouldn't be at peace, but it wouldn't be Nick Kristof's favorite new cause, either.

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Jason Stearns said...

Emin -

Thanks. The post is back up, I had to make some minor edits, some of which address your points.

First, yes, it is difficult to figure out how much of the conflict is due to what. The proximate causes, however, are clear - refugees, state collapse and local struggles over citizenship and power. Minerals didn't really figure in a big way in the early days of the AFDL, certainly not in the Kivus, and it isn't clear to me that the MNCs needed a war to get at the big mining concessions in Katanga and Kasais - the sector was in the process of being privatized under Kengo wa Dondo, albeit slowly.

Not to be misunderstood: I certainly do think that minerals have contributed to prolonging the conflict and that they have played a huge role in the conflict since at least 1998. But the conflict centers around many issues.

I agree with you that it is difficult to reform the mining sector so that revenues can be directed towards state construction and service provision, given all the entrenched interests. That is really a question of transforming the logic of governance in the region.

Emin Pasha said...

Jason--

Perhaps you can migrate this exchange over to the post it references, now that you've put it back up?

Anyway, the question your piece leaves a-begging is what you think about the effectiveness/wisdom of the conflict mineral movement, such as it is, and of the specific bills moving thru Congress.

Jason Stearns said...

Sorry, I'm too computer illiterate to figure out how to move these comments to the other post.

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