DR Congo – Constitutional Referendum

More than forty years have elapsed since the Democratic Republic of Congo’s last democratic poll, which was held in 1960 upon gaining independence from Belgium, and the country’s constitutional referendum of 18-19 December 2005, in which 84% of the voters endorsed a new 229-article constitution (in French). The referendum represents a major turning point for
Africa’s largest civil war, which has claimed 3.5 million lives since 1998, left 3.4 million internally displaced, and forced 443,000 refugees into asylum in nine bordering nations. With the nation’s sovereignty at stake and the transitional government’s mandate expiring in June 2006, DR Congo’s transitional President Joseph Kabila urged the populace to support the new constitution, warning that rejection of it would be “catastrophic.” Kabila must now deliver on his promises of decentralized power-sharing, increased political rights for women, political accountability, and economic liberalization as the country prepares for presidential and parliamentary elections in March and April 2006 and local elections by 30 June 2006.

The Independent Electoral Committee (CEI), established under Law 05/010 of 22 June 2005, managed the constitutional referendum. The UN provided a budget of $444 million for the referendum (MONUC); in comparison, Iraq’s election budget was $250 million (UNAMI). CEI announced early results on 21 December 2005. No province rejected the constitution. Support of the constitution was lowest at 50% in Kinshasa and highest in the war-beleaguered east where foreign powers controlled entire provinces during the civil war and where rebel factions continue to resist and attack UN troops. Final referendum results, when available, will require validation by the DR Congo Supreme Court of Justice.

Replacing the 2003-2006 Transitional Constitution
The new constitution will replace the transitional constitution, enacted 4 April 2003. The transitional constitution arose from the Global and All-Inclusive Agreement on the Transition (in French) signed on 17 December 2002 in Pretoria, South Africa. The agreement ended a five-year war and established a transition government led by one president, four vice presidents representing the previous major warring factions, and 38 ministers. The agreement also outlined the principle objectives of a transitional government in the DR Congo and called for a constitutional referendum to be followed by national elections within three years. The agreement allows up to two six-month extensions. One six-month extension was granted to accommodate delayed election logistics. A second six-month extension will be authorized on 31 December 2005. Thus, the promulgation of the constitution and national and local elections must be completed by 30 June 2006. The timetable coincides with the downsizing of the UN peacekeeping troops by July 2006. (UN Security Council resolutions 1621, 1635). DR Congo receives the largest budget of any UN peacekeeping force around the world.

Drafting the New Constitution
France, Mauritius, Belgium, and the United States assisted the DR Congo in drafting the constitution. International partners providing additional assistance included the Electoral Institute of South Africa (EISA), the Konrad Adenauer Foundation (FKA), USAID, UNDP, and the United Nations office in DR Congo. The US-based National Democratic Institute for International Affairs (NDI), under USAID funding, provided technical support and proposed revisions of the draft constitution. USAID also funded two NGOs in 2002 to work with the Justice and Peace Commission of the Catholic Church to develop, print, and widely circulate a draft constitution that served as the precursor to the 2005 draft constitution; it proposed the semi-presidential republic with a president, parliament, and prime minister. (see USAID “Success Stories”).

The Congolese Constitutional Commission finalized the draft constitution at a retreat in Kisangani in October 2004 and then officially presented it on 29 October 2004 to the Senate and the President of the Chamber of Parliament. In accordance with Article 104 of the transitional constitution, the DR Congo’s transitional parliament, known as the National Assembly, adopted the draft constitution on 13 May 2005 for submission to the popular referendum. The referendum was held on 18 December 2005 and extended by one day due to logistical delays at polling stations, high voter turn-out, and heavy rains.

Voter Registration
With the cooperation of the United Nations Mission in DR Congo (MONUC), the transitional government established a Joint Commission on Essential Legislation. The commission developed the legislative framework for voter registration and the election process, The National Assembly approved the framework on 24 December 2004. (Law No 04/028). The National Assembly is expected to approve elections laws on 10 January 2006, but crucial amnesty laws have yet to be agreed upon.

Universal suffrage is granted to citizens over the age of 18 years. A total of 25 million registered voters participated in the constitutional referendum. For many Congolese, the referendum marked their first experience voting. Senior citizens over the age of 65, roughly 2.6% of the population, remember the last democratic elections in 1960 and dictator Mobutu’s unopposed election of 1970. Still, the majority of the population was unborn or unable to vote forty years ago; life expectancy is currently 41 years (UNDP 2003).

Refugees in Asylum
The 443,000 refugees living in asylum are not eligible to vote. In early 2005, the UN High Commission for Refugees (UNHCR) recognized the logistical limitations on repatriating refugees in time for elections and issued a strategic plan to repatriate 186,000 refugees before December 2006, including 80,000 of the over 200,000 Congolese refugees living in Tanzania, Burundi, and Rwanda. Most of those refugees are from the eastern provinces of North Kivu, South Kivu, and Katagana. In addition to planned repatriation, some refugees returned spontaneously to participate in the elections. Their security, health, and reintegration depend heavily on the transition government.

2005 Referendum
The Independent Electoral Committee (CEI) distributed more than 500,000 copies of the constitution, one copy for roughly every 50 voters. The literacy rate is estimated to be 50% for female voters and 74% for male voters. (UNDP 2003). In addition to the official release in French, translations were provided into four major Congolese languages (Kikongo, Tshiluba, Swahili, and Lingala). It is unclear whether each distributed copy contained the French version and all translations. CEI also provided a 52-page illustrated guide in French with answers to common constitutional questions. The constitution was not translated into Kingwana, a widely-used local dialect of Swahili. More than 200 additional languages are spoken by over 200 African ethnic groups in the country.

2005 Draft Constitution
Despite the awareness campaign, many voters remained ignorant of the draft constitution’s content. For the most part, voters relied on the transitional government’s assurances of better living conditions, public order, and employment. The Centre National d’Appui au Développement et à la Participation Populaire told voters the constitution was “flawed” but still better than any alternative.

• Decentralized Power-Sharing
Sovereignty is constitutionally split between the federal government and the provinces. The federal government has exclusive powers for national defense, the national police force, regulation of currency, immigration, intellectual property of patents and copyrights, foreign trade, personal income tax, corporation taxes, and foreign affairs. (Article 202). The provinces are solely responsible for provincial commerce, local laws, the provincial budget, water sanitation, and taxes of land, income, and vehicles. (Article 204). In addition, the provinces must implement federal programs, such as education, public health, and economic development related to national interests. The federal government and provinces share responsibility for the protection of human rights, tourism, and sports. (Article 203).

The federal government’s powers are vested in three branches of government: executive, parliament, and an independent judiciary. The President is elected by direct vote and limited to two five-year terms. (Article 70). The minimum age requirement is reduced from 35 to 30 years. (Article 72). This lowered age requirement allows current transitional President Kabila to run for office and is not surprising given the decreased life expectancy, now currently 41 years (UNDP 2003). The President is Commander-in-Chief of the armed forces (Article 83). He may take necessary action in times of emergency as reviewed by the Constitutional Court. (Article 145). The President also appoints the Prime Minister from the party with parliamentary majority. (Article 78). The Prime Minister co-signs Presidential ordinances except those related to the appointment of the Prime Minister, the nomination of Governors and Vice-Governors, and declarations of war. (Article 79). The Prime Minister also may delegate power to Ministers. (Article 92).

The federal legislature is a bicameral parliament comprised of the National Assembly and the Senate. (Article 100). Members of the National Assembly are elected by direct vote for five-year terms. They must be at least 25 years of age. Members of the Senate are elected by indirect secret vote for five-year terms. They must be at least 30 years of age. Former Presidents are granted the rights of Senator for life. The number of members will be determined by electoral law. Parliament will meet twice annually from 15 March to 15 June and 15 September to 15 December.

The constitution alters judicial practices in the country by replacing the previous Supreme Court with three courts: the Constitutional Court, the Supreme Court of Appeals, and an administrative court. (Article 149).

• Provinces
Each semiautonomous province will be governed by a provincial legislative assembly and government consisting of a governor, a vice-governor, and up to ten provincial ministers. (Articles 195, 198). To aid in autonomy, each province will retain 40% of intra-provincial revenues, including taxes on exports of minerals, timber, and energy resources. (Article 175). The remaining revenue will become part of the national budget.

The number of provinces will increase from ten to twenty-five. The city of Kinshasa will continue to be granted the same rights as a province.

The ten provinces previously included: Bandundu, Bas-Congo, Equateur, Kasai-Occidental, Kasai-Oriental, Katanga, Maniema, Nord-Kivu, Orientale, and Sud-Kivu, as well as the city of Kinshasa.

The new provinces are: Bas-Uele, Ecuador, Haut-Lomami, Haut-Katanga, Haut-Uele, Ituri, Kasai, Kasai Eastern, central Kongo, Kwango, Kwilu, Lomami, Lualaba, Lulua, May-Ndombe, Maniema, Mongala, North-Kivu, North-Ubangi, Sankuru, Southern Kivu, Southern Ubangi, Tanganyika, Tshopo, Tshuapa. (Article 2).

Click for larger image of the 25 Proposed DR Congo Provinces. La carte des provinces proposées de la RDC.

Women’s Political Rights
The constitution provides for enumerated women’s rights in an effort to combat historical discriminatory policies, laws, and cultural attitudes. While the DR Congo established the Ministry of Advancement of Women in 1980 and ratified the Convention on the Elimination of All Forms of Discrimination against Women in 1986, women remained disenfranchised from the political and judicial systems. Currently, women need their husbands’ permission to obtain credit. They are denied pensions. If a married women commits adultery, she is given a more severe penalty than a man.

With the civil war, rape is widespread and the perpetrators are rarely prosecuted. Rape, as a weapon, was used in the fighting in Kassika, Makobola, and Masisi. Even UN peacekeeping troops have participated in the rape and sexual exploitation of Congolese women. The UN expelled 178 workers after investigations confirmed their crimes (MONUC).

The constitution provides for equal representation in government and the end to discrimination. Whether the implementation details of “equitable representation” means a fixed 50%-50% quota for elected officials remains unclear.

The constitution condemns the use of rape and sexual violence against women.

Citizenship
Citizenship is granted to those ethnic groups in existence at the time of independence in 1960. (Article 10).

Rebels groups have accused the transitional government of introducing this new constitutional requirement to exclude the Banyamulenge ethnic group, a Tutsi population of Rwandan origin, living in the northeast provinces. Many Congolese remain wary of the political, economic, and military control of Rwanda Tutsis who infiltrated over the border during the 1994 Genocide.

United Nations Peacekeeping Forces
As of November 2005, the UN had 16,221 total uniformed personnel, including 15,197 troops, 724 military observers, 300 police supported by 811 international civilian personnel, 1,373 local civilian staff and 470 United Nations Volunteers in the DR Congo. Under Chapter VII of the UN Charter, the peacekeeping troops provide security and are authorized to use necessary means to neutralize rebel groups, including foreign-backed rebel groups such as the Angolan Unita. With an annual budget of approximately $650 million, the UN mission in the DR Congo receives the largest budget of any UN peacekeeping mission (MONUC).

DR Congo Background Information
The Democratic Republic of Congo, abbreviated as DRC and DR Congo, straddles the equator in the Great Lakes region of central Africa. The country, formerly known as Zaire (1971–97), borders nine countries: Angola, Burundi, the Central African Republic, Republic of Congo, Rwanda, the Sudan, Tanzania, Uganda, and Zambia. The country has a narrow strip of coastline along the Atlantic Ocean.

The country has immense wealth yet ranks as the ninth worst country in the world in terms of life expectancy, educational attainment, and adjusted real income (UNDP 2003). The country contains 50% of Africa’s forests, 33% of the world’s reserves of cobalt and heterogenite, 10% of the world’s reserves of copper, and 80% of the world’s reserves of Coltan. The country also exports diamonds and gold, and produces 10 million barrels of crude petroleum from off-shore drilling.

Despite the country’s potential economic earning power from natural resources, foreign donors have forgiven $14 billion in foreign debt, and the average Congolese lives on US $119 annually (IMF 2004). More than 80% of the population is employed in the agricultural sector and food security remains a national problem.

USAID estimates the population of DR Congo to be 55 million (July 2005); the CIA estimates it to be 60 million (July 2005). An older estimate from the UNDP estimates the population to be 49.8 million (UNDP 2001). Half of the population is under the age of 18.

Democratic Republic of the Congo Official Resources

• Democratic Republic of the Congo, President
• Independent Electoral Commission – La Commission Electorale Indépendante (CEI)
• Democratic Republic of the Congo Permanent Mission to the United Nations
• Global and All-Inclusive Agreement on the Transition in the Democratic Republic of the Congo
• DR Congo Constitution 2006 (French)
• DR Congo Constitution 2006 (Kikongo)
• DR Congo Constitution 2006 (Tshiluba)
• DR Congo Constitution 2006 (Swahili)
• DR Congo Constitution 2006 (Lingala)

Democratic Republic of the Congo and International Law

• United Nations (admitted 20 September 1960)
• International Covenant on Civil and Political Rights – ICCPR (1 November 1976)
• International Covenant on Economic Social and Cultural Rights – ICESCR (1 November 1976)
• International Convention on the Elimination of All Forms of Racial Discrimination – ICERD (1 February 1977)
• Convention on the Elimination of All Forms of Discrimination against Women – CEDAW (16 November 1986)
• African (BANJUL) Charter on Human and People’s Rights (ratified 20 July 1987)
• Convention on the Rights of the Child – CRC (ratified 27 September 1990)
• WHO Framework Convention on Tobacco Control – WHO FCTC (ratified 28 October 2005)
• Chemical Weapons Convention – CWC (ratified 11 November 2005)

United Nations Resources

• UN Mission in DR Congo (MONUC)
• UN Office for the Coordination of Humanitarian Affairs (OCHA)
• UN OCHA in DRC
• UN OCHA news in DRC
• UNDP DR Congo Country Office
• UN Central Emergency Response Fund (CERF)

Additional News and Information Resources

• The World Bank
• African Development Bank (AfDB )
• USAID DR Congo
• Chamber of Commerce Franco-Congolaise / Chambre de Commerce et d’Industrie Franco-Congolaise (CCIFC)
• National Democratic Institute for International Affairs (NDI)
• Abantu for Development
• Radio Okapi
• Congo Vision
• Groupe de Presse L’Avenir / Radio-Télévision
• Afrique Centrale News

Blogs

• Ali M. Mamina, USA (Congolese)
• Congo Watch by Ingrid Jones, United Kingdom
• International Rescue Committee Photo Gallery