Moïse Katumbi and the Congo’s race for the presidency
The influential businessman and former governor of Katanga has taken an early lead in an aggressive race, but has he made his move too early?
Could this be the DRC’s next president? Credit: Radio Okapi.
Moïse Katumbi has had an eventful and emotional few days since he declared his intention to run for president. On 4 May, the former governor of Katanga announced his candidacy on Twitter, and the next day found his house surrounded by police. Katumbi’s arrest seemed imminent, but eventually the police left their positions under pressure from MONUSCO, the UN peacekeeping mission in the Democratic Republic of Congo (DRC).
The presidential elections for which Katumbi intends to run are scheduled for 27 November, but it is doubtful whether they will actually take place. At this point, not many people believe that credible elections can be organised within the constitutional delays.
There are several reasons for this, but the most important is that the government has systematically withheld the funds needed by the electoral commission to organise the various phases of the process. This could be seen as a symptom of the government’s lack of ownership over its own elections, but it is actually closer to a boycott.
Over the last couple of years, the government has attempted several times to create the conditions to prolong the reign of President Joseph Kabila beyond the stipulated constitutional limit. In September 2014, for instance, Speaker of the National Assembly Aubin Minaku tried but proved unable to change the constitution. Then, in January 2015, the government again tried but failed to pass a new electoral law that would have delayed the elections by several years.
The only strategy that has worked so far is le glissement (‘slippage’) – that is to say, delaying the elections due to the government’s position that it is not possible financially or technically to organise them in time. Remaining in power by simply not organising elections.
Crystalising or cracking?
It has become clear since around 2014, however, that Kabila has had difficulties in maintaining the superficial unity among the informal networks and interest groups that make up his regime. And particularly since September 2015, Kabila’s Majorité Présidentielle has been in a state of disarray.
That month, seven senior political figures – known as the G7 – were expelled from the ruling coalition after calling on the president not to cling onto power. Then, shortly after, the influential Katumbi announced his resignation from the ruling PPRD party. Meanwhile, anti-Kabila sentiment continued to grow in Katanga and Kabila’s relationships within his inner circle of power remained poor.
By the end of 2015, the possibility of this growing opposition managing to work together in a solid constellation was looking hopeful. And different rapprochements between Kabila’s opponents crystalised in mid-December with the creation of the Front Citoyen 2016.
Nevertheless, the opposition is frequently targeted by the regime and subject to attempts to fragment the parties from within.
Amongst the opposition, Moïse Katumbi has increasingly been seen as the best placed challenger to Kabila since around 2014. As governor of Katanga from 2008 until 2015, when the province was dissolved, he was seen as successful and popular; he has built an economic empire as a businessman; and his looks, communication skills and money contribute to his ability to mobilise large crowds in what was formerly Katanga and beyond.
However, not everything is in his favour. It is not obvious that the Congolese electorate will want a third consecutive president whose roots are in Katanga; Katumbi’s wealth and the way he acquired it make him vulnerable to allegations and potential court cases; and the business community in the town of Lubumbashi not only complains that he is greedy but claims he used his political mandate to expand his economic empire.
Furthermore, Katumbi is still somewhat of an outsider when it comes to national politics. He has yet to prove he has the political skills and nerves of steel necessary to set up and lead the broad coalition it would take to really challenge Kabila (or his crown prince if he were to appoint one).
As it stands then, both the current regime and opposition fail to fully convince. Important politicians have left the ruling majority, others are suspected to be preparing their departures, while many of those who remain are competing with each other with impressive zeal.
The hardliners of the regime perhaps have the advantage currently, which is palpable in its public statements, in the media and in the growing repression of opposition leaders, dissidents and other critics, including in civil society and the press.
The opposition meanwhile still has to show it can make a difference and come forward with a coherent political constellation, centred around in a single candidacy. In December 2015, the Front Citoyen 2016 was established as a broad coalition for the respect of the Constitution, but for now the main merit of the group is the fact that it exists.
It does not have much of an active institutional life and strategic thinking is still being done in the headquarters of different opposition parties. Above all though, the opposition has yet to demonstrate a vision – a plan explaining what they will do in power if they obtain it.
Jostling for position
At present, the political scene in Congo resembles a cycling peloton as the racers prepare for the sprint finish: hectic, fast, and with an awful lot of shoving. Everyone wants to position themselves as well as possible for the final straight, though whether the finish line is where it is meant to be – or whether it will be pushed back and back – remains to be seen.
In this jostling for position, Katumbi may find that he has taken the lead of the pack too early. The irritated reactions of fellow opposition leaders Vital Kamerhe and Félix Tshisekedi point in that direction. Meanwhile, taking pole position also means that Katumbi may have to deal with strongest headwinds of repression.
Indeed, on the very day Katumbi announced his candidacy, Congo’s justice minister announced an investigation into allegations that the opposition politician has recruited mercenaries, an accusation many believe is politically motivated. Furthermore, Human Rights Watch has reported that at least 27 of Katumbi’s allies were arrested in and around Lubumbashi between 22 April and 7 May.
“The recent developments in Lubumbashi come in the context of a broader crackdown against activists, opposition party members and others who have urged that presidential elections be organized according to the constitutional timetable”, said the organisation.
What will happen next in this complex competition for power is difficult to predict, but one thing that is certain is that the race is just getting started.
Kris Berwouts (Gent, 1963) has worked for a number of different Belgian and international NGOs over the past 25 years, focused on building peace, reconciliation, security and democratic processes. Since 2012, he has worked as an independent expert and writer on Central Africa.
It’s purely political. Moise Katumbi will make an excellent president and is not hiring mercenaries. He simply wanted to feel safe in his own home, is that too much to ask? He is a great man and I believe that he will make a great president too. Viva Moise!
1) There’s no mention above of the much-touted “Inclusive Dialogue”—proposed by the UN and now being pushed by the African Union (AU)—between the opposition and the ruling majority. A dialogue that seems to be hopelessly sputtering, despite the goodwill of its AU-appointed facilitator, the one-time Secretary-General of the now-defunct Organization of African Unity (OAU), the Togolese Edem Kodjo.
2) On this issue, the opposition is irretrievably sundered between those who want to participate in this dialogue (Etienne Tshisekedi’s UDPS party) and those who belong to what could be termed a “rejection front” (a motley of parties and platforms) who’ve vowed to deem Kabila “illegitimate” and having tendered his resignation by the date of 20th December 2016, when the new president-elect is supposed to be inaugurated.
3) Now, some in the opposition accuse the UDPS and the Kabila camp to be hatching a nefarious power-sharing plan whereat the bulk of the opposition would be sidelined and with no elections taking place. A transition “slippage” that could take 4 to 5 years.
4) Contrary to what Kris Berwouts surmises, the clout of Katumbi looms large in the DRC due in large part to his ownership of the football team TP Mazembe and to the legend of his good governance during his tenure as governor of the former Katanga Province. And Congolese crave for two things: football and good governance. Far from putting himself in a vulnerable position, Katumbi may have put himself in pole position; thus demonstrating he has efficiently honed his political skills. And the government’s dogged pursuit against his person may prove to be a big, avoidable mistake.
Congo is crippled by poor leadership. For now any alternative will be preferable . It’s insane for a big country with all the existing natural resources be the poorest country in the planet. Katumbi seems to be the man who can reverse that .
The Caretaker Convention or Holding President Kabila to Strict Limitation in Action
May 12, 2016
The Caretaker Convention
Preamble:
Wednesday May 11/16 the DRC Constitutional Court decided that DRC President Joseph Kabila, who is constitutionally forbidden in seeking a third term as DRC President, is now by this Constitutional Court decision able to remain in office as DRC President even if no election takes place before his Presidential mandate expires December 2016.
This judicial ruling was decided following the request of the ruling governing party motivated in DRC President Kabila’s failure to commit in setting a firm date for the DRC General Election, mandated by the DRC Constitution. This DRC General Election was to have been conducted in November 2016, prior to the December 2016 conclusion of Kabila’s Presidential mandate.
Wednesday’s Constitutional Court ruling was a result of a request for clarification over President Joseph Kabila’s political public fate if the DRC General Election is prevented for reasons not sufficient in logistical rational ensuring that these November 2016 Elections do proceed on schedule.
The DRC Constitutional Court grounded their legal decision on article 70 of the constitution stating that a President remains in office until an election decides selecting the next President. The opposition political entities argued in favour of article 75 whereby the President of the Senate assumes Office of President immediately following the statutory conclusion of the incumbent President’s Term of Office. Therefore, this individual will hold the Office of DRC President until an election which by active civic civil social citizen participation who will decide via the ballot their civic choice for DRC President.
Issue salient for DRC:
My concern regarding this decision rendered by this DRC Constitutional Court is that this judicial ruling does not take into account what I refer to as “The Caretaker Convention” limiting the executive powers of President Kabila, who post December 2016 will no longer enjoy the privileges of an elected mandate. Post December 2016 will witness Kabila as DRC President who is merely that of a caretaker who must be strictly limited in the conduct of his Presidential duties inclusive of presidential responsibilities.
In my country Canada, Legislative Parliamentary Governance convention requires that the Government command the confidence of the House of Commons at all times. While constitutionally a government retains full legal authority to govern during an election, as well as the responsibility to ensure that necessary government activity continues, the Government is expected to exercise judicious probative restraint in all its executive administrative governance endeavours. This is what is meant as the “caretaker convention”. The reasoning is, following dissolution of Parliament, there is no elected parliament to which the Government can be held accountable, and the Government cannot assume that it will command confidence in the next Parliament as this Government may be defeated.
Joseph Kabila in my judgment occupies a similar role in that his executive presidential responsibility must considered as that of a “caretaker” severely limiting his capacity to initiate new government business save that of ensuring that the CENI is able to discharge their civic civil electoral administrative responsibilities effectively and efficiently ensuring that the DRC General Election is conducted in a most immediate timely manner without any form of intimidation.
The conventional restriction limiting the extent to which the President should exercise his authority applies when the Presidency is post mandate according to the DRC Constitution. The Caretaker Convention also applies to the outgoing government during any post-election transition to a successor government. The Caretaker convention ends when a new government is sworn into Office.
This does not mean that government is barred from making decisions or announcements, or otherwise taking action, during the caretaker period. It can and should do so where the matter is routine and necessary for the conduct of government business, or where it is urgent and in the public interest – for example, responding to a natural disaster. In certain cases where a major decision is unavoidable during a campaign [due to an international obligation or an emergency], consultation with the opposition parties may be appropriate, particularly where a major decision could be controversial or difficult for a new government to reverse.
In short, during an election, a government should restrict itself – in matters of policy, expenditure and appointments – to activity that is:
1. routine, or
2. non-controversial, or
3. urgent and in the public interest, or
4. reversible by a new government without undue cost or disruption, or
agreed to by opposition parties [where consultation is appropriate].
In determining what activity is necessary for continued good government, the Government/President must inevitably exercise judgement, weighing the need for action and potential public reaction, given the absence of a confidence elected mandate and fully aware that a different government/president will be elected.
The duties of Ministers must continue to be fulfilled during the caretaker period. Officials and departmental resources continue to be at the disposal of ministers for the purpose of departmental duties. These duties may or may not be set out in legislation.
As is always the case between elections, ministers are obliged to ensure that the resources of the department and portfolio – financial, materiel and human resources – are not used for partisan purposes. In the context of an election, they must be especially vigilant with respect to the distinction between official government business supported by departmental and portfolio resources, and partisan political activities, taking care to avoid even the appearance that departmental and portfolio resources are being used for campaign purposes for the exclusive benefit of one political entity.
In order to fulfill their ongoing responsibilities, ministers must provide direction to the department or portfolio as appropriate. At the same time, in order to respect the caretaker convention as well as the distinction between official government business and partisan activity, in the absence of any of the exceptions enumerated above, ministers must:
1. defer to the extent possible such matters as appointments, policy decisions, new spending or other initiatives, announcements, negotiations or consultations, non-routine contracts and grants and contributions;
2. work to ensure that departmental activities are carried out in a non-partisan, low-profile manner; and
3. avoid participating in high-profile government-related domestic and international events, including federal/provincial/territorial events, international visits, and the signing of treaties and agreements.
Normal Ministerial Cabinet procedures must be followed in fulfilling the minister’s official duties. The minister must not act independently on any initiative that requires Executive approval. Ministerial operations are severely curtailed during the caretaker interregnum, with Cabinet meeting only as necessary to deal with essential items.
But when it comes to questions of constitutional propriety we go beyond the particular merits or otherwise of the agreements and how a decision was reached. We are dealing instead with the practice of government itself – the rules and norms for decision-making in our society – and there ought to be no room for argument in discussion. If we know what our constitutional practice is and should be then we should always insist on its observance.
Therefore, I intend to address the character of the constitutional conventions which appear to me to apply in this instance, that is to say, what is regarded as appropriate behaviour by a government in the period following the conclusion of a mandate and leading up to the conclusion of the ensuing general election.
The Caretaker Convention:
What is known in some quarters as the “caretaker convention” is easily described although it is nowhere written down. It is a well-established principle of parliamentary government that once parliament has been dissolved and an election campaign is under way the government’s freedom of decision-making is firmly restricted and should be confined to dealing with only routine matters of administration – apart, of course, from any emergency situation which may arise.
More specifically, it is said that three areas of decision-making in particular should be avoided in this period – matters involving considerable controversy, matters which are not urgent [that is to say, matters which can wait for a later decision without causing irreparable damage], and matters where a decision would unreasonably bind the freedom of decision-making of a future government. It is occasionally said as well that matters involving the expenditure of very large sums of public money should also be avoided.
There are two reasons for this view, both of which would appear to be obvious. The first is that if the President is out of mandate in time the ordinary mechanisms for scrutinizing the government’s behaviour – question time, a debate on the adjournment, motions for supply, and debate generally – are not available.
Everyone knows that in a parliamentary system the power of the executive is potentially enormous. It is the existence of these mechanisms of “constructive obstruction” that takes the edge off that power and assures the people that the government is being kept responsible. But if they cannot be used there must be a compensating reduction in the usual extent of the power of the government. The caretaker convention addresses that issue.
An election campaign ensures the selection of a new president and therefore the possibility that its leaders will not be able to take responsibility for the consequences of prior decisions conducted by the immediate past President [Kabila]. It follows that only the most routine administrative decisions ought to be made in this period – decisions, in short, which any government might make – again excepting an emergency.
To conclude, it is up to the President to decide what will be done. Conventions, customs, and practices, simply because they are not in any way linked to legality, must always be grounded within an ethos public political in civic civil social character.
Monte McMurchy LL.D.
Recteur
UCI
Kinshasa, DRC