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, January 13, 2011

Are the amendments to the constitution illegal?

There has been some healthy debate in the comments section (h/t to Rich and Julie M.) on whether the government was in its rights to amend the constitution. On the face of, nothing illegal has been committed -the text of the constitution was more or less followed (aside from some procedural irregularities - they didn't send the revision to the president for comments, etc).

The amendment process is also not in itself too exceptional - the French constitution, for example, also allows for the parliament united in a joint session to change the constitution with a 60% vote (it is much more difficult in the US).

Even some of the content of the proposed revisions is not too outlandish - as I have pointed out here before, countries like Mexico, Nicaragua, Paraguay and the Philippines elect their presidents in a one round, plurality-wins elections.

However, from a more principled stance, the revision is flawed. First, it appears that the government has amended the constitution not in the public interest, but so as to benefit private individuals. Holding just one round of elections will benefit President Kabila, as the vote will largely be a pro- or anti-Kabila vote, and in a one-round election, the opposition will split the anti-Kabila vote, making it easier for the incumbent to win. The justification that a one-round election will save money does not hold water - the country has to hold two rounds anyway so as to carry out provincial elections in February 2012. The other argument, that the country will be polarized by a two-round contest, is more defensible, but does not trump the fact that a one round election will give undue advantage to the incumbent (especially since the opposition is so divided). Also, while the 2006 election was very tense, the violence that did ensue was rarely East vs. West, but more due to local conflicts.

The speed at which the whole vote was carried out was also alarming, given that parliament was revising the founding document of the republic. On this count, the Republic of South Africa has a clause in its constitution that prevents any amendment from being voted on within 30 days of its submission to parliament.

The substance of the revisions are also questionable - some have argued that placing prosecutors under the authority of the ministry of justice violates the independence of the judiciary mandated by the constitution. I will leave this question to the constitutional experts, but in many European systems prosecutors are also appointed by ministries of justice; of course one can argue that those ministries are more accountable than the Congolese one, but at least pro forma they are not too far out in left field.

On the dissolution of provincial assemblies, however, and the removal of governors (after consultation with the council of ministers and parliament) I think they have gone too far. If a provincial assembly is democratically elected, and it then elects governors, the president should not unilaterally be able to remove these officials as he pleases. This was the debate in Pakistan over the years. The dictatorship of Zia allowed the president to dissolve provincial assemblies, a power that was controversial, suppressed by the 13th amendment and then restored by the 17th amendment under General Musharraf.

So the revision of the constitution should have been much more deliberate and thoughtful and should have taken into consideration the spirit of the law, not just the letter.

And, of course, Julie M. is right in pointing out that if MPs were bribed into passing the law, then it was illegal. But how to prove that?

3 comments:

Anonymous said...

This.....

And, of course, Julie M. is right in pointing out that MPs were bribed into passing the law, then it was illegal. But how to prove that?

...could happen by organizing a sting. And, if it happened, the key would be to ensure it implicates Kabila. Then ofcourse the law would take its course.

Will this happen? Probably not. And if it did happen (a sting), there really isn't a functioning judiciary to ensure prosecutions occur and that is particularly the case now.

But that is one way to start catching a thief, Jason.

Be interesting to see if the 100,000 petitions process could work in the Congolese favor and/or begin to shake up the coming election. Perhaps an amendment to recall any government official? Or one that reserves most tax raising, budget approval, minster appointments, mineral contracts- a kinda "Magna Carta" amendment- to the Assembly alone?

(if the Assembly had clear veto powers of the President, the entire political calculus- not to mention corruption- would shift in the Congo)

The current constitution ofcourse says that you can't change terms of service. But it says nothing about recalling politicians and the two aren't the same.

In fact, it says NOTHING about removing officials. Odd, but given when it was written understandable.

It would be quite instructive to all Congolese to see how their politicians react to such an effort and, if they do so badly, serve the interest of the opposition and by default the Congolese.

This is just me theorizing ofcourse. But, as I have posted before, what should be the goals here?

a. strengthen the opposition and unify them?
b. strengthen one "power center" to clip Kabila's power? (ie Assembly)
c. pressure the American government to get serious in the Congo?
d. get Tanzania to invade Rwanda and Uganda to remove this element?
e. enable a grassroots movement a la what the West (mostly America) did with the various "color" revolutions?
f. create some campaign to pressure China and mining companies?
g. all the above?
h. nothing?

Melissa

Patience Kabamba said...

Good analysis but the debate around one or two rounds of presidential elections in DRC is reversing the priority and focusing on the consequence and not on the essential element of the vote. The tacit democratic consensus is that to rule a country one has to be endorsed or supported by at least half of the population who are allowed to vote.If during the first round of election one of the candidates obtains 50 +1 %, election is over. The most important point is not the number of rounds, but the capacity of gathering the support of more than half of the voting population. It gives one a incontestable legitimacy. If during the second round of an election there are so much white bulletins that none of the two contenders gets at least 50 +1%, there will be a third round. The fundamental idea is the same, to rule with at least the endorsement of the half of the constituents. If Kinshasa does not want a president with more than 50% of supports then it is denying the very reasons of the elections.
The financial argument is obsolete and a smoke screen not because it does not make sense, but because it is not correct. The troubles we had in the Congo were particularly due to the lack of legitimacy of the leaders. It will cost more money and not less if someone is elected with 20% of the voting population. This leader will be contested by 80% of the voting constituencies. They will be the majority to context this power and it will cost more money to deal with the trouble dues to lack of legitimacy than to organize a second round to ensure that the president is elected with at least 51% of the votes.

Rich said...

- Patience,

Ref # “It will cost more money and not less if someone is elected with 20% of the voting population. This leader will be contested by 80% of the voting constituencies.”

That is a fair point. However, are we going to assume that an elected president who only managed, for instance, 1.4% of votes in one province then 80% in another will be, somehow, less legitimate or president in the first province and more in the latter? See the ethnic differentials that stemmed from the East Vs West divide during the 2006 elections.

What about the turnout rates? Are we going to say, for instance, when only less than 50% from the total of voting population (and even less when taken from the general population) turnout to cast their ballots, the result of that election will, somehow, be less legitimate? See the case of countries with an increasing low turnout rate(the so called ‘election-fatigued public’)!!!

I am not trying to defend anyone but I think lawmakers should think carefully about how they can better define this problem of legitimacy as a reflexion of a given percentage or the absolute number of votes of a given population.

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