Kabila’s Latest Gambit: Stacking the DRC’s Constitutional Court

By Michael Wilcox - 28 May 2018 at 1:13 pm
Kabila’s Latest Gambit: Stacking the DRC’s Constitutional Court

While health workers race to protect his people, almost 8 million of which are already on the verge of starvation, from a new outbreak of the deadly Ebola virus, Congolese leader Joseph Kabila is—as usual—looking after his own interests. A year and a half after the official end of his mandate—and six months before elections will supposedly take place—worrying signs are piling up that the Democratic Republic of Congo (DRC)’s leader Joseph Kabila is plotting to seize a third term by hook or by crook.

Kabila’s behind-the-scenes maneuvering to cling to power made headlines again as he nominated his close allies to fill three vacancies on the country’s nine-member Constitutional Court. The DRC’s Constitutional Court will become increasingly influential in the coming months, assuming that presidential elections go ahead on December 23rd as planned, as it is the only court in the country in which candidates can challenge election results. It is also the only forum in the DRC capable of judging the Prime Minister or the President himself. Kabila himself recognized the court’s unique importance in a rare interview he gave to Der Spiegel in June 2017, when he remarked: “It’s not up to the West or any scholar to decide whether our institutions are legitimate or not. That’s for our constitutional court to decide”.

While one of the vacancies Kabila filled was due to a judge’s death after a long illness in April, the other two empty seats came from the surprising resignation of two of the court’s independent members. Opposition lawmakers expressed concerns that the two judges had been forced to resign so that Kabila could shape a court which would “rubber stamp his plans to hold onto power”.

A number of elements suggest that they may be right. For one, the two judges who resigned had a history of making independent judgments, including their refusal to back the decision to delay elections initially scheduled for 2016. The judges’ vague statements at the time of their resignation didn’t exactly inspire confidence, either—one of them explained that he had quit for reasons which he “couldn’t make public”—nor did the “unusual” significant military presence surrounding the Constitutional Court the day they resigned.

The judges Kabila nominated, particularly long-time ally Norbert Nkulu Kilombo, lend credence to suspicions that Kabila intends to argue that a constitutional amendment in 2011 in fact constituted an entirely new constitution, and that he has therefore only served one term under this “new” constitution and would be eligible to run again at the end of 2018. Nkulu has been floating various constitutional arguments for Kabila’s continued rule for years. One opposition figure commented back in 2016 that if anyone was going to modify the Congolese constitution to allow Kabila another term, it would be Nkulu.

Stacking the Constitutional Court wouldn’t be Kabila’s first scheme to stay in power, or even the first time he’s manipulated the DRC’s justice system to those ends. In 2016, mere days after popular opposition leader and former governor of the mineral-rich Katanga Province Moïse Katumbi announced his candidacy for president, he was arrested on charges of illegally purchasing a flat and of hiring American mercenaries. Despite the fact that the allegations were widely considered false and politically-motivated, including by the U.S. Embassy in Kinshasa, Katumbi was sentenced in absentia to 36 months in prison and a $6 million fine.

If the timing wasn’t suspicious enough, the circumstances surrounding Katumbi’s arrest and trial raised more than a few eyebrows. Katumbi’s house was ransacked by the Republican Guard, an elite corps of troops under Kabila’s personal control who have a history of torturing and assassinating political opposition figures. During Katumbi’s trial, held after the opposition leader had already gone into exile, the court did not call a single witness. One of the judges who convicted Katumbi later admitted that she had been bullied into convicting the former governor by the Congolese intelligence agency.

Against this troubling backdrop, even some of Kabila’s more benign-sounding policies invite increased scrutiny. In April 2018, Kabila sacked more than 250 judges who reportedly did not have law degrees. Given the president’s track record, one wonders whether this was a good-faith attempt to weed out fraudsters or a widespread purge of the judiciary so that Kabila could nominate more loyal magistrates.

With the judiciary and military under his control, it seems like Kabila holds all the cards. Katumbi would disagree, however. For the exiled leader who plans to risk arrest to return to the DRC in June to officially file his candidacy, “the citizens are still the biggest power in Congo”. There are encouraging signs that the opposition is coalescing into a united front against Kabila: Katumbi and fellow opposition candidate Felix Tshisekedi, expected to come in second in the election behind Katumbi, traveled together to Washington D.C. from May 21 to 23 to encourage the international community to ramp up the pressure on Kabila to step down. The Congolese people have repeatedly taken to the streets to demonstrate against Kabila’s regime, despite being shot at by security forces. The youth movement Lucha continues to mobilize young Congolese and organize protests. With more support from the West, the DRC’s citizens could ensure that Kabila’s tricks do not allow him to steal the election.

Michael Wilcox

Michael Wilcox

I am a London-based researcher specialized in security issues and environmental protection. He is currently writing a book about the role lobbying plays in keeping African leaders in power.

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