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

Tuesday, December 13, 2011

Will Kamerhe's lawsuit succed?

Shortly after Vital Kamerhe submitted a lawsuit to the Supreme Court yesterday, doubts were raised in public and private about the case. (You can read it here). In the complaint, Kamerhe asked for the cancellation of the polls and a new vote.

Of course, the main doubt about Kamerhe's success resides in the perceived bias of the Supreme Court - just a month before elections, the president named 18 new judges to add the eight previous members, ostensibly to help with their heavy work burden. However, many opposition and civil society members think that these newcomers are politically biased.

Other doubts have also been raised regarding Kamerhe's complaint.

Le Potentiel, hardly a newspaper favorable to the government, suggested that Kamerhe may not have fulfilled the legal requirements. The electoral law requires complaints to be filed either in the name of an organization or as an individual. Kamerhe submits his claim in the name of his UNC party (although I'm not sure he annexed his nomination as president of the party), which leaves him unable to raise points concerning Tshisekedi and the opposition as a whole. I am not too concerned by this procedural nuance, as the UNC is not arguing the fine points of the elections - he wants the whole thing to be cancelled, so it doesn't really matter whether he does this in the name of the opposition or the UNC.

I am more concerned by the substance. I am not a lawyer, but it seems to me that a lawsuit should submit as much proof as possible to substantiate its claims. In this document, the UNC makes the following points:
  • The voter list should be published and posted in polling stations thirty days before the vote. It was not;
  • The list of polling stations itself should be published 30 days before the vote. It was not;
  • In many polling stations, opposition witnesses were not allowed to sign the proces verbaux (minutes) and were prevented from accompanying the ballots from polling station to compilation center;
  • UNC witnesses were not given access to the National Treatment Center were comprehensive results were compiled;
  • Pre-marked ballots favoring Kabila were found before elections began, and in many polling stations there were not enough ballots for the voters;
  • Kabila used state assets for his campaign, including airplanes and public vehicles, and putting posters on public buildings;
  • Finally, he cites around a dozen polling stations with suspicious results.
All of these complaints may well be true; they mirror what the Carter Center and the EU have said. But there was no proof (PVs, pre-marked ballots, police reports, affidavits) that accompanied this claim, at least to my knowledge.

One problem was that Kamerhe had little time to produce the lawsuit - the law only provides for two working days after the declaration of preliminary results. The Supreme Court then only has 7 days to judge the matter.

One positive note is that the Supreme Court has decided to hear the case in a public hearing, not behind closed doors as was initially feared.

18 comments:

Anonymous said...

1) The oppositions made a grave mistake for not confronting Kabila together as one before the election - that was the only way to win the election instead of crying for the split milk.
2) When i heard the declaration of head of Catholic church before yesterday one thing came to my mind - the genocide in Rwanda. How it has started with the interference of catholic church priests. What really the guy thought will happen?! Let Catholic church stop old model of Politics and preach Love of God.
3) None of the international observers have contributed for this election,the election been conducted on the Congolese way, on the form of Congolese democracy - If you want to know Congolese way you should at least stay in Congo 1 year - you will get to it.

SM
Goma

Anonymous said...

SM,
The only thing you see around in Africa is the so-called genocide that many have used as a business fund. Or are you just one of those people who have relied heavily on the fear of genocide to deprive others of their right to democracy. Of course Monseigneur Moswengo has the right to express his views as a citizen of the DRC. Congolese have never gone so low to resort to the so-called genocide. The last Mapping Report will prove you the contrary concerning the real perpetrators of it in the DRC. They are not congolese.

Anonymous said...

Anon 1:49,
When you talk of democracy in DRC my hair start vibrating.

When was the time Congolese had democracy?
I do believe in Democracy but not in a democracy which leads every one to man slaughtering!

Africa needs a form of democracy that speaks to its culture and traditions. In many areas of Africa, the influence and importance of tribal leadership cannot be dismissed. Any system of democracy that is developed must take into consideration the reality of tribalism.

Africa cannot follow the European or American style of democracy.

The Europeans developed this democracy from Greek influences and have had hundreds of years to improve upon this system of government, contrary to the nations of Africa who have only enjoyed freedom from their colonial masters over the last 50-plus years.
I am against violence at any cost.

SM
Goma

Anonymous said...

@SM
That's the culturalist approach, Africa is different; it should have its own brand of democracy. This is not problem here though.
The issue here is whether an election marred with fraud, violence and voter intimidation can be representative of the will of the people. You can vote for whoever you want, for whatever reason. At the end of the day, you expect your vote to be accounted for and more importantly, to reflect your choice.
If you want to avoid violence at any cost, you shuold have a society wide consensus on how to gain power and/or to lose it. This won't happen when one section of society believes that the other cheated or won't stop at anything to gain power, including fraud and violence.
Despite its many flaws, Western democracies have thrived because this consensus exists. We should use their experience to avoid repeating their mistakes. Bostwana or Ghana decent African democracies despite a relatively short democratic experience of 54 and 45 years respectively.

Anonymous said...

You are right. You are not a lawyer.

Anonymous said...

"We should use their experience to avoid repeating their mistakes."

So easy to say; but not too sure how this works in practice! Botswana or Ghana are not and will never be the DRC. So stop with your patronising assumptions.

Anonymous said...

I realize, Jason, your not a lawyer but why are you "not concerned with procedural nuance"?

Would you say that if, I dunno, a straight couple sued Connecticut for a violation of their constitutional right to a domestic partnership? Of-course not, because it would kinda be a moot point.

The party in a suit is crucial and who files is of considerable importance to the overall legal strategy and, thus, success.

Personally, I am glad that Vital, who I like quite a bit and who clearly respects the institutions of his country- even if they are flawed. The Congolese have got to "work" their institutions if they are to improve and Vital knows it.

However, it probably would have made more sense, or atleast been more strategic, if the opposition would have filed this suit on behalf of those who could not vote, or workers who witnessed irregularities, or whatever and THEN make it a question about their constitutional rights and CENI's violation of them than a real battle would have been set with the Supreme Court.

So, again, I wouldn't dismiss out of hand who filed the suit.

That's no way to think through a legal strategy- even if the outcome may be in doubt.

Mel

Tony said...

report of the first hearing by CSJ of the complaint from Kamerhe, here : acolombepoingdegaucheenrdc.wordpress.com/2011/12/16/devant-la-cour-supreme-de-justice-kamerhe-humilie/

Anonymous said...

would vital kamerhe have legal standing under congolese law to file a suite on behalf of "those who could not vote?" does anyone on this blog actually have more than a kind of vague, journalistic familiarity with congolese law? i ask because advancing a discussion into the realm of serious substance requires some expertise, not just passing familiarity or ends-driven pseudo-arguments.

Anonymous said...

@ Anon 12/16 3:33-

If you are asking if anyone here is a Congolese lawyer than could you simply ask that question instead of the pendantic "i ask because advancing a discussion into the realm of serious substance requires some expertise"?

It would probably be more useful and actually advance a discussion. That said, Congolese law does provide for class action lawsuits so, yes, should Vital or really any lawyer admitted to practice in the Congo can find an aggrieved party- in her example a voter who could not vote or a witness to fraudulent activity in any part of the voting process- and challenge CENI on both its legal mandate and, depending on the "party" in the suit, if their constitutional rights as citizens had been violated.

The Constitution also empowers the Supreme Court with the judicial review so its decisions have the force of law and it alone can decide if an act of the Executive or Legislative is constitutional. Has it exercised this right yet? No, but that actually isn't germane to Vital's efforts at this point.

I would also add that legal concepts like torts, civil procedure, and judicial review are pretty standard in Anglo and French systems of law and actually evolved as a result of pioneering work of journalists. Thus, I wouldn't dismiss those having a "vague, journalistic familiarity with congolese law" out of hand given its mostly been a free press that has informed citizens of their rights which has subsequently informed the law itself.

What remains a mystery at this point is what exactly is the legal foundation for contesting an election in the Congo. From a sample read of Congolese newspapers, its own journalists aren't entirely clear given this effort of Vital's has never been tried before which, ofcourse, results from the lack of adherence to the rule of law in this country. I believe this is where Mel's argument about strategy- not the particular of the law which, ofcourse, can evolve- makes sense. If there is no legal foundation or established precedent it is therefore more strategic (and more beneficial to law generally in the Congo) to file a suit on behalf of voters who have been disenfranchised in some way so as to force the SCJ to effect some kind of redress which would have the further effect of clarifying and expanding constitutional law on this issue (elections) and generally.

I believe that's a fine argument and pretty sophisticated and if you have a better idea about how to both redress the "irregularities" in this election, hold accountable CENI for them, and uphold the basic rights of Congolese citizens it would be great to hear it.

I'll conclude by adding the idea that average people shouldn't somehow critique or offer alternatives to the workings of the law is, frankly, elitist. If a disenfranchised voter, or voters, was incapable of seeking redress in a court in the Congo, that is actually far worse of a situation than the one the Congolese are confronted with now.

(more below and a response to Stearns)

Anonymous said...

@ Jason- your concerns about evidence are valid but, while I don't have access to Vital's lawyer, it seems somewhat clear to me that the goal here is to sue CENI for the irregularities. If that's the case, a less partisan court wouldn't need proof from the suing party but would subpoena CENI to release their paper trail which, potentially, would have the "smoking gun" as it were.

Again, I don't know the strategy but it appears to be based on forcing CENI to answer the charges by forking over documents that could help establish a pattern of fraud. The whole idea of suing a government ministry, as Congolese lawyer friends inform me, is without precedent in the Congo so this has all kinds of mostly good legal implications for the country- even if this effort is ultimately futile.

Frank

ps. I am an American lawyer who has practiced in America, France, Rwanda, Tanzania, and the Congo (pro-bono on the latter three) so I have quite a bit of familiarity with the law in the Congo. While Congolese jurisprudence is in desperate need of reform the bulk of its laws have been informed by the Napoleonic Code, which results from its colonial rule by Belgium and is actually more expansive in upholding the basic rights of citizenship that Anglo traditions given its origins in revolutionary France.

Anonymous said...

And just to be clear, I'm trying to distinguish between Vital's private legal action and his public rhetoric on that action.

In public, Vital is trying to basically force the Court to annul the vote which is purely rhetorical and explicitly political (it could also be strategic depending on the level of coordination with UDPS on this matter of which no one appears to know). I'm sure I don't need to game that out but clearly the idea is to force the Court to throw out the challenge and, by default, make it clear to a segment of the Congolese that their court will not hold up their rights.

In private it is likely a different matter, though, ofcourse, I could be wrong. It could be the simple- but paradoxically profound- effort to, again, force CENI to address the irregularities. This would also be strategic and provide, it is hoped, the critical "smoking gun" on fraud. It would have been better to find a kind of "deep throat" prior to all this but I doubt they had the time to do so. (this is a reference to the Watergate scandal in America that brought down, pushed by the esteemed DC newspaper the Washington Post, the Presidency of Richard Nixon. In an attempt to secure his reelection, Nixon ordered his operatives to break into the HQ's of the Democratic Party which, at the time, was based at the Watergate Hotel in DC. "Deep throat" was someone who was found by the main journalists pursuing this story who was a witness to the depth of criminality that began in the White House)

Anyway, Tony's report basically confirms that the SC has rejected Vital's efforts and his legal team's argument on grounds of lack of evidence. So it appears that the legal strategy I assumed was their effort wasn't their effort which is unfortunate.

I believe it would be useful, however, to continue to sue CENI along the lines of what I have suggested.

Frank

Anonymous said...

in responding to mel's post, my point related to the question of standing, which was not addressed in the responses above. i do not claim to know whether or not kamerhe would have legal standing to advance the kind of claims she proposed, but, if he does not, then it makes those kinds of suggestions just irrelevant to the legal reality.

as to elitism or not, anyone, esp. on a blog, is free to offer whatever critique he or she likes. whether those critiques are useful or meaningful surely depends in part on their relationship to facts. so knowledge of the relevant facts does matter.

obviously my question was not whether or not anyone was a congolese lawyer. it was more broad than that. sorry, but that's not pedantry.

Brandon Blattner said...

Why didn't Tshisekedi file an opposition with the Supreme Court?

Anonymous said...

Actually, it is pendantic because to somehow question whether or not Vital, a candidate for office, or a voter, doesn't have either pre-qualify or even post-qualify to stand before a Congolese court on grounds that their constitutional rights have been violated by the irregularities of CENI's management of the election process or to annul a vote is not only ridiculous on its face but, from your line of reasoning, a point of argument that's been voted in reality by the lawsuit.

As such, it qualifies as pendantry in my book and, whethered offered here or elsewhere, not particularly useful.

Finally, if your critique is about legal strategy- which is the heart of mel's argument- than offer one. It is fine to critique but to do so about legal strategy assumes some elemental knowledge about the law and jurisprudence- not simply "the facts"- given both are organic functions of human society and particularly this society.

There is no argument as to whether or not what Vital, or anyone for that matter, is doing is illegal or has no standing. The question here is one about legal strategy vis a vis CENI.

Its pretty clear you don't understand that distinction so, if you don't, try asking for clarification.

I'm sure we'd be more than happy to enlighten you.

Frank

Anonymous said...

honestly, frank, i had thought that english was your native tongue. if you go back to mel's post, you see that she proposed various approaches not taken by kamerhe. i asked whether he had standing to follow those specific approaches. i asked whether or not anyone knew if he were in a position to adopt those approaches. pretty simple questions, but i see that they frustrate you because your response just drifts off into realms not dealt with by what i was asking.

Anonymous said...

Thanks, Frank, for elaborating on my ideas.

Also, Anon Dec 17th 2011 3:32, I get a strong "yes" to Frank's elaboration but I guess you somehow don't. Is English not your prime language? His responses are rather clear to me but perhaps something is getting lost in the translation.

I am a recovering attorney (practiced in FL for 15 years before becoming a French teacher in Gainesville, FL, where I reside. Went to law school at Duke after Vassar) and my husband has business interests with 2 Congolese partners in Bas Congo and the Kivu's so I am also quite familiar with Congolese law. I also assist the United Methodist Church's activities pro bono with their very large and long standing activity in the Congo.

More to I guess your point (that, again, has been answered) my ideas originated from conversations with two lawyer friends who practice in Kinshasa and Lumumbashi respectively.

Both believe Vital, or someone else, should take this approach- even now- and Congolese law and civil procedure allow both individual and class action lawsuits against institutions of state. There are limitations or what you consider "standing" but Frank probably has better input there than I would.

Mel

blaise said...

I think Mel, Frank and our other friend all have great points. I can sense some frustrations here and there.
Nevertheless, I think it's too much to ask to our politicians and their lawyers to handle constitutional matters the right way.
Two reasons:
- there is really no precedent in the matter
- I don't think there is a handful of Congolese's lawyers who can perform in this highest level
Don't go to a gun fight with a knife! That what Kamehere's lawyers just did.
We all knew that the court had a bias but it was the lawyers work to expose that.
Did they do their homework? Research about the judges? were they ready for the battle?
I think no is the answer for all those questions.They weren't crafty enough and they walk out. That all we will remember.
We got more problems coming with the legislative elections, it looks even more messier.
For more inform discussions, check that site :
http://www.leganet.cd/

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