Mail & Guardian

Call for AU to weigh in on impasse

Interventi­on is needed to ensure that Joseph Kabila hands over power in December

- Stephanie Wolters

Nineteen years ago, on May 17 1997, LaurentDés­iré Kabila overthrew Mobutu Sese Seko, the president of what was then Zaire. Although he was supported by a regional coalition that had the tacit backing of key Western countries, the ousting of Mobutu was haphazard at best; Kabila himself was a relative unknown with no experience of government.

This is how the last political transition in the second-largest country in Africa took place.

The prevailing sentiment at the time was one of hope, and expectatio­ns were high that the corruption and stagnation of the Mobutu years would become a thing of the past.

We know what followed. Just over a year later, a hopeful Congolese population stood by, stunned at the turn of events as a largely regionally driven conflict was fought by Congolese proxies. That war lasted five years, sowing the seeds of a further two decades of instabilit­y and giving birth to countless militias and rebel groups.

But the end of that war also led to the formation of a transition government, the adoption of a new Constituti­on and the creation of new democratic institutio­ns. Most importantl­y, the end of that war was followed by two rounds of presidenti­al and provincial elections.

So although the Kabila era got off to a rocky start, it has not all been bad. When he came to power in January 2001 following his father’s assassinat­ion, Joseph Kabila quickly made the bold move of re-engaging in the peace talks from which Laurent had withdrawn, and set the country on a path to peace.

Kabila now has another six months to walk away from 15 years in power with the rightful legacy of playing an essential role in stabilisin­g the Democratic Republic of Congo. Unfortunat­ely, things are not looking good on that front. Kabila is notoriousl­y uncommunic­ative and, in the absence of informatio­n, there is wild speculatio­n about his motiva- tions and intentions.

His government’s actions in the past two years have prompted widespread concern that it has no intention of holding elections in December.

The latest clue came last week, when the DRC’s pro-government Constituti­onal Court ruled that the president could stay in office until a newly elected president replaces him. Although no one has dared say it aloud, the likelihood of presidenti­al elections being held by the end of this year, as required, is diminishin­g by the day.

In fact, the 2005 Constituti­on, backed by the ruling party and adopted by national referendum, is very clear about the chain of command. Article 75 states that, if the president is indisposed, the president of the Senate takes over.

But that arrangemen­t would not suit Kabila, as it would mean leaving office and ceding power to Léon Kengo wa Dondo, a former prime minister under Mobutu and a tenuous political ally of Kabila’s.

Fortunatel­y for Kabila, the court has responded that article 75 does not apply in the event that elections are not held. The ruling has been criticised as being politicall­y motivated and designed to make sure Kabila can legally stay in office even after his mandate expires.

In the end, it doesn’t matter what the political opposition or the legal experts think. Having tried so many other ways to create a valid legal framework to extend his mandate, Kabila has now finally succeeded.

Although not as effective as a referendum to change the Constituti­on to allow him to stay in office longer — and in no way a credible explanatio­n of why elections cannot be held on time — the court ruling gives him a degree of legitimacy once the December 20 deadline has passed.

This creates just enough confusion in the legal and political landscape to complicate responses to what remains a straightfo­rward power grab. As a result of the ruling, the conversati­on will now go something like this:

Concerned internatio­nal community: “The Constituti­on says you must hold presidenti­al elections three months before the president’s mandate expires.”

Congolese government: “We are not ready to hold elections. We have to update the voter lists, as per your demand. What’s the rush?”

Concerned i nternation­al community: “But the Constituti­on says you must hold presidenti­al elections three months before your mandate expires. If you don’t, you are violating the Constituti­on.”

Congolese government: “What’s the crisis? Our Constituti­on also says that our president will stay in office until he is replaced by another elected president. Our most senior court just ruled this.”

Obvious as the ploy may be, there is the simple fact that the process has been validated by a legal domestic institutio­n, much like Burundi’s Constituti­onal Court validated President Pierre Nkurunziza’s claim to a third mandate in April 2015. In the DRC, as in the Republic of Congo and Rwanda, the legal framework has been retrofitte­d to legitimise a political aim. But because it has been done by a legitimate domestic institutio­n, it raises issues of sovereignt­y. Countries such as South Africa — to which many have looked to intervene in favour of Kabila leaving — will now probably be more reluctant to argue that Kabila must leave in December.

Western countries such Belgium and the United States, both of which have been vocally opposed to Kabila extending his stay in office, may also take a step back and figure out how to navigate this space. One way to maintain pressure is to continue to focus on human rights violations and those responsibl­e for harassing political opponents and civil society leaders. Sanctions against those involved in violent repression are already on the table.

The key voice in this situation needs to be that of the African Union, which has the tools to weigh in on the mandate issue. The African Union’s 2007 Charter on Democracy, Elections and Governance makes provision to sanction member states if they manipulate legislatio­n for the purposes of staying in power. But so far the AU has been relatively absent from the debate on the DRC.

It did respond favourably to the Kabila government’s request to designate Edem Kodjo, a former secretary general of the Organisati­on of African Unity, as the facilitato­r of the national dialogue, and Kodjo has made several trips to Kinshasa in the hope of forging consensus around the forum. But Kodjo has failed to mark his independen­ce and lend the dialogue the credibilit­y it needs if it is to assist the country in navigating the current impasse. For that to happen, he would need to start afresh, and without preconditi­ons.

The AU can support Kodjo’s facilitati­on and also weigh in on the need to respect the DRC’s Constituti­on, especially on the question of elections. Although the institutio­n was dealt a blow when heads of state backtracke­d on the AU force for Burundi, that should not keep it from speaking out clearly on the situation in the DRC.

Norm-setting is a gradual process. Thirty years ago, the continent’s biggest challenges were coups. Today the AU has a zero-tolerance approach that is supported by member states. Mandate extensions have caused instabilit­y throughout the continent, especially in Central Africa, in the past two years. It is time to address this issue more seriously. — ISS Today

 ??  ?? Precarious peace: The United Nations maintains a military presence (left) in the eastern DRC; demonstrat­ors call for elections to end.
Precarious peace: The United Nations maintains a military presence (left) in the eastern DRC; demonstrat­ors call for elections to end.
 ?? Photo: Emmanuel Braun/Reuters ?? Moment of truth: The recent actions of President Joseph Kabila’s government have sparked concern that he won’t hand over power democratic­ally.
Photo: Emmanuel Braun/Reuters Moment of truth: The recent actions of President Joseph Kabila’s government have sparked concern that he won’t hand over power democratic­ally.
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