Comment: Constitutional Review Fears

A planned review of the constitution of the Democratic Republic of Congo, DRC, has worrying implications for democracy and justice.



While a good case can be made for some minor constitutional adjustments, great care should be taken that such bolt-tightening is not used as an excuse for a wider-reaching overhaul that strengthens the executive’s stranglehold over the country.



An expert commission was set up several months ago to evaluate the constitution and propose any amendments that it considers necessary.



The committee includes representatives from the presidency, the prime minister’s office, both houses of parliament and the supreme court.



It is lamentable that civil society is not represented, and there is a very real danger that President Joseph Kabila, who commands an overall majority in parliament, could drive through changes to the constitution that benefit his political career rather than the country as a whole.



Of particular concern is talk of extending the maximum length of time that a president can serve, currently set at two terms of five years each.



Some commentators have suggested that the expert panel is gearing up to propose a constitutional revision that would extend the presidential mandate to seven years, and permit presidents to run for office an unlimited number of times.



Should such a change go through, the 2011 elections would almost certainly be postponed and Kabila’s grip on power over the country would strengthen.



Government aides, however, dismiss such talk as mere conjecture and say that Kabila has no plans to extend his mandate.



Another matter would have to be dealt with, too. An inconvenient constitutional clause makes it clear that the terms of the presidential mandate cannot be revised.



Therefore, before an extension of the mandate could be considered, the expert group would first have to figure out a way of overcoming this problem.



Another deeply worrying idea is the suggestion that the president and the minister of justice could be integrated into the high council of the magistracy.



This body, which was set up in 2006 to promote judicial independence, is woefully under-funded and suffers perpetual interference from the government.



From the outset, this has undermined the high council’s claim to independence and its ability to perform the tasks it was set up to carry out.



Integrating government departments into the organisation will only make things worse.



Some argue that, since the government should have ultimate responsibility for the judicial system, it would be ill-advised to completely sever justice from the executive.



But such sentiments are dangerous, and ignore the perpetual struggle in the DRC to lessen government interference with the court – not least in light of comments made by Kabila earlier this year to step up the fight against corruption in the magistracy.



Without a truly independent judicial power, which enjoys a consistent budget and is not subject to the whims of government, it will be very difficult to achieve a lasting democratic order in the DRC.



There is some justification for considering a constitutional review.



When it was drawn up in 2006, the constitution gave the government 36 months to oversee the splintering of the country’s existing 11 provinces into 26 new ones.



The idea of the 26 provinces was motivated, in part, by the need to consolidate national unity, which has been undermined by successive wars in the DRC.



Dividing the country into smaller semi-autonomous regions, it was argued, would help reduce inter-ethnic conflict by creating more homogeneous local administrations.



However, so far little significant headway in addressing the issue has been made.



According to the constitution, both houses of parliament must agree on border demarcation by a three-fifths qualified majority.



Since the government enjoys a significant majority in both the assembly and the senate, the upper and lower house, it would not be difficult for it to push the change through if it wished.



But Kabila’s government is showing noticeably little enthusiasm for setting up the new provinces.



If the government feels that it cannot set up the additional 15 provinces before the election, then it is conceivable that the constitution could be modified to prevent a slide into illegality.



But this review must be in compliance with the principles of the constitution, and great care must be taken not to use this as an excuse to tinker with other legal elements.



Without such caution, there will be no election in 2011 and fundamental democratic rights will be put in jeopardy.



Eugène Bakama Bope is IWPR’s Congo analyst.



The views expressed in this article are not necessarily the views of IWPR.