On the Congolese Draft Constitution

I must first apologize for disappearing from the blogosphere in the past few days. This was due partly to the fact that I was finally called back to daily life matters, but also – more importantly for this post – to my taking a bit of time to do some level of analysis of the new draft constitution, which cleared through the Senate of the Democratic Republic of the Congo, my beloved country.

Now, although I do have a BA in Political Science, I do not pretend to be a specialist in Constitutional matters. My views are more based on common sense, and some familiarity that I have with constitutions around the world, and in Africa in particular, as well as a certain idea of the current situation in the country.

My first general impression, was that the venerable senators have been playing a balancing game between different constitutional traditions, trying to harmonize the semi-presidential system of France, and the semi-Federalism of South Africa and Belgium, all this while trying to convey the feeling of being inspired by the “Luluabourg Constitution”, the only one adopted by referendum by the Congolese… in 1964! Aside from the personalized issues, that the politicians are using in the debate against each other – such as the age at which one is eligible to the Presidency, or the number of senators in the new Parliament, the major objective issues on the purely political side, were the following: was Congo going to adopt a Federal system, or a Unitarian system? Here again they have chosen a balance between the two, in a hybrid “broadly decentralized unitary system”, with the consequence of taming the passions of both sides. Of all these attempts at “equilibrium”, result a very complicated system, and an unnecessarily long document (about 40 pages) that is attempting to legislate – in a micro-managed way - every aspect of life, including morality, while guaranteeing the corrupt political establishment a continued and undisturbed tenure, without accountability for their past misdeeds. Below is my slightly detailed “review”.

There is a Preamble, and 9 Titles in the Constitution.
The Preamble, in the long tradition of Congolese – and francophone – constitutions, is long-winded, but contains the same locutions that one finds in a Preamble, such as “We the Congolese People, united by fate and by history…”. It would be of fairly little consequence, if it did not include the commitment to a fleet of Human rights conventions and charters, and if it did not commit to women and children’s rights. The latter were the result of a bitter fight by female senators who – rightfully – wanted to see their rights enshrined in the beginning of the Constitution, to help in facilitating implementation. I find it sad that they even had to fight for these rights to be recognized, in the 21st century: no argument about “African traditions” justifies that.

Title I addresses “sovereignty matters”, such as the name of the country – which by God’s mercy the senators did not change – and the various attributes of the state, its emblems and motto – which they have changed, AGAIN (5th time in 40 years, 3rd time in 10 years). This was in my opinion an irresponsible decision, motivated only by ego, and power plays in Parliament. The Congo could really be spared the cost of changing the flags over a territory the size of Western Europe, and reprinting passports, ID’s, Driver’s Licenses and number plates… but if that’s what the people wants, it’ll have to do. Title I brings about the basic principles of a republic, with universal and secret suffrage, sovereignty belonging to the people, and political pluralism, which exist in EVERY constitution in Africa, except in Swaziland, and in some way Uganda and Egypt. Yet we have seen how the political elite has been able to trample on the people AND the constitution in Togo, Zimbabwe, Somalia, etc. There is nothing in these principles, or in the rest of the constitution, that creates some level of original mechanisms, that will address the realities on the ground, and the real conditions of strife, and the deeper social, cultural, ethnic and generational issues. A contentious issue that was not dealt with was that of citizenship, which is still exclusive, meaning that it cannot be held concurrently with another one… rather archaic if you ask me, and the motivations for keeping it – mostly to prevent Congolese Tutsis to have a double citizenship with Rwanda or Burundi – are quite in disagreement with the stated purpose of promoting the African Union. Interestingly, despite the rise of radical religious groups in Congo, the senators maintained the secularism of the State, which was a pleasant surprise (though in practice, Christian prejudice often amounts to law).

Title II is the Bill of Rights, Freedoms and Duties (that is actually quite the Congolese thing, to always tie rights to duties). The rights and freedoms granted, and the duties are (in the order they come in the constitution): equality of all humans at birth, individual freedom, freedom from slavery, right to non-discrimination – especially on the basis of gender (which is also a duty of the State to actively eliminate), right to life, right to free personal growth, due process of law, presumption of innocence, right to be represented in court by a human rights organization for illegal detention, right to an attorney, right of appeal, freedom of thought, conscience and religion, freedom of expression, freedom of – and right to - information and of the media, freedom of unarmed assembly, right to privacy, asylum, private property, right and duty to work, freedom of association, right and freedom to form a union, right to free heterosexual marriage, right to have a family, right to family protection, duty for children to assist their parents, children’s rights (right to family and state care and protection in all things, but particularly against rape, exploitation, and military service, right to health), right to education (school compulsory till 16 years old), intellectual property, right to health, right to have access to water and electricity (I particularly like this one, probably the only really original aspect of Constitution), right of the elderly and the disabled to be integral members of the society, right to a clean environment, duty for all Congolese people to protect the environment, right to benefit from natural resources, right to have access and enjoy the common World heritage, freedom from imprisonment due to debts, ignorance of the law is not a valid defense, duty to respect the law, right and duty to defend the country, even against any internal threat to the democratic institutions, duty to go fight in the event of a draft, duty to pay taxes, duty to respect private property.

WHY DID I WRITE ALL THESE DOWN? Well, to have it written in english first. And then to say that these are very good ideals, and they are actually close to perfect. The issue here is that for most of the rights, they are granted under two reservations: respect for public order and others' rights, and respect for good morality. The Congolese state, in its very "Catholic prejudice" mode, will continue to be in the business of legislating morality… in the 21st century. Not only did they enshrine in the Constitution the death penalty (Article 15), but they have also placed the good morality test on virtually every meaningful freedom. In other words, the state will decide for its people what good morality is; instead of being a personal matter, morality becomes a governmental matter… thus contradicting the very meaning of “individual freedom” stated in the same Title. This is going to be a potential loophole for governments to quash down opposition demonstrations, and undermine fundamental society debates in the future. Thus the bill of rights, instead of being expansive, becomes quite restrictive, and that is a shame.

Title III deals with the way the government works, establishing the principles of decentralization (as opposed to full-fledged Federalism), and a bi-cephalous executive branch (President and Prime Minister), as well as a bicameral Parliament. Aside from the issues I have cited in my introduction, my greatest problem with the constitution come from the bi-cephalous executive branch. In a country that will barely be rising out of conflicts, there is no need to create a situation where there is a very clear potential for more conflicts. The semi-presidential regime did not do Congo any good at independence, with the deadlock between President Kasa-Vubu, and Prime Minister Lumumba, which only ended with the tragic and remote-controlled death of the latter. In the country that coined the system, France, we have seen the levels of political tensions, and obstructions, that result from “cohabitation” situation (with the President and the Prime Minister from opposing parties); and France has been at it for decades.

What are the potential consequences of a “cohabitation” situation, in the highly volatile environment in Congo? With the painful debates on the constitution itself, couldn’t the senators anticipate what it would be like? They should have gone either with a fully parliamentarian system (which I do not think is appropriate for Congo anyway), or with the Presidential system, with one head of the Executive, “where the buck stops”. Congo is in need of clarity and fluidity at the helm of the country, not deadlocked political forums, like the ones we have now.

Additionally, the splitting of the Supreme Court into three different entities seems to be a simple exercise in style preferences that is another “budgetivore” measure that is frankly unnecessary. The Supreme Court can handle itself quite well, when given the means to do so.
Finally, I have a problem with the fact that they have included the President’s personal moral probity (in marriage for instance) as a motive for impeachment. If there is one thing we have learnt from the Clinton era, is that a person’s sexual habits do not have a thing to do with their ability to run the country. The President should have the right to some private life too.

The last 5 titles are fairly short, and deal with the organization of the Provinces, the Electoral Commission, the Audiovisual media Superior Council, and transitional measures. They are fairly standard, and I did not want to waste more of people’s time. But all in all, it is – I guess – a decent constitution. It simply does not strike me as the APPROPRIATE constitution. For all the talk in the Preamble about the Congolese people’s “unalienable right to organize [themselves] freely, and to develop [their] political, economical, social and cultural life, by [their] own ingenuity”, this entire constitution seems like a melting pot – or more appropriately a salad bowl, or a patchwork – of other documents, in which there is in fact very little “ingenuity”.

It seems the senators were more inclined to play partisan games, than to really think through what the country needs to become the nation that it has not been in a long time, if ever. This constitution guarantees all the outward appearance of a full-fledged democracy; but Congo will not become one unless the PEOPLE are aware of all their rights. And in a country where awareness is often limited to the big cities – when it exists at all, the current politicians (or at least some of them) are almost guaranteed a spot in the elected institutions. Congo will then have a decent constitution, but will still be ruled by the very same people that contributed to her destruction… in that context, true change will really be a struggle; and the current document is a good start, but it is still not strong enough – nor expansive or creative enough – to tackle the real challenges of tribalism, ethnic rivalries, the rise of Christian extremism, corruption, and more importantly the technological, infrastructural and educational regression that has occurred in the past 40 years. The current constitution makes the assumption that Congo will have a majority of leaders that have moral decency and are more motivated by the call to civic duty, than the call of their personal bank accounts… We can always hope, right?