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DR Congo: On the current debate over a looming crisis of legitimacy

AnalysisDR Congo: On the current debate over a looming crisis of legitimacy


By David-Ngendo Tshimba


A picture taken on December 20, 2011 shows Democratic Republic of Congo President Joseph Kabila reviewing troops in KinshasaUncertainty hangs over the date of presidential and legislative elections, yet President Joseph Kabila’s term expires on 19 December 2016 and he is not eligible for re-election. The opposition rejects the possibility of Kabila continuing in office as elections are organized. But there is an alternative. The Congolese can forget about elections and instead imagine a different way of organizing their society away from liberal democracy.

Liberal democracy cum ‘electrocracy’

It is now argued that political governance by the exercise of a high degree of the monopoly of violence and human rights abuses, hitherto characteristic of many political regimes in Africa during the Cold War era, has come to be regarded as an exception rather than the general rule in post-Cold War dispensations across most of the continent. Arguably, the period since the late 1980s in Africa has witnessed a renewed effort at reorganising the African political space in ways that would make the exercise of power more attuned to the demands of the citizenry.

By the mid-1990s, the momentum for political reforms had effectively become an unstoppable Africa-wide movement. The continent over, the single-party and military dictatorships that had been erected in the course of the period from the mid-1960s to mid-1970s gave way—one after the other—to domestic popular pressures for not only liberalisation but even outright democratisation of the political space. This post-Cold War wave of democratisation ushered in the restoration of multi-party politics, the organisation of elections, the licensing of private electronic and print media, and the removal of the worst restrictions on the organisation of public political meetings.  

There, therefore, seemed to be growing agreement as to how political power should be transferred—the holding of periodic and democratic elections (‘electocracy) being the sine qua non of political stability and of society’s peaceful development. As Lanciné Sylla once posited, if the winds of democracy are blowing over Africa today, one reason may be that democracy provides a rational solution to the  problem  of succession. Liberalization of the political regime in a sense, Sylla further maintains, forces a country to establish a rational system for transferring power.

Particularly in post-Cold War sub-Saharan Africa, there has been a rapidly growing reliance on electoral processes as the principal way to legitimise governance at national, regional, and local levels. Coming from the context of a bipolar world from where the crisis and the collapse of one side (Communism) seemed to have validated the victory and superiority of the other (Capitalism), Ernest Wamba-dia-Wamba pointedly noted that the political death of bureaucratic socialism has propelled the parliamentarian mode of politics (which includes liberal democracy) to a hegemonic position. Celebrants of capitalism in the West, Wamba-dia-Wamba underscored, have seized the occasion to intensify the propaganda for a free market economy and multi-party democracy. Hence, this Western-induced parliamentarian mode of politics has been perceived as an inescapable means for stimulating the development of democratic politics; for choosing representatives; for forming governments; and for conferring legitimacy upon the new political order.

2011 in the Democratic Republic of Congo (DRC) would have been the year for post-independence Congolese people to undergo a liberal democratic experiment of free and fair elections for the second time ever since the country acceded to national sovereignty in 1960. In 2006, in a bid to end a two-decade long series of armed conflict, which plagued the country in what has been termed as the ‘worst humanitarian crisis’ Africa has ever suffered since World War II, elections were held after a three-year transition from which Joseph Kabila emerged as the elected President. Compared to the previous experiment, the 2011 presidential and legislative elections were conducted in an even more charged socio-political atmosphere—a revision of the 2005 promulgated Constitution having taken place less than a year to the polls.

Marred by significant irregularities and mal-practices compromising the very stated agreeable standards of liberal democracy, these elections could not have brought any significant contributions to a radical transformation of the nation yet known for its post-independence democratic deficiencies. Already at the time of the Congo controversy during the Leopoldian rule more than a century ago, Adam Hochschild posits that the idea of full human rights, political, economic, and social for the Congolese people, was a profound threat to the establishment of most countries on earth; perhaps, it still is to date. To add insult to the injury, what seemed to have mattered most for the incumbent regime in 2011 was mere regime consolidation against all odds. Ironically, though less surprisingly, celebrants of the liberal democratic order in the West (the United States of America as its vanguard) came in handy to rubber-stamp the outcome of these 2011 general elections with little to no consideration of dissenting views from within the Congolese body politic. To levy even a weightier critique against this incumbent regime, citing Karl Marx, it came to signify the “unlimited despotism of one class over other classes.”  

The otherwise little-hard-earned precedence of the 2006 elections was simply erased by the 2011 performance. With (i) a political elite (as forming a comprador bourgeoisie) in connivance with international capitalists (whether from previous metropolises or otherwise) deeply involved in cancerous deals of corruption which robs its citizenry of the basic expectations and the subsequent sheer lack of fight against it; (ii) a quasi-absence of state institutions (more so security and judicial apparatuses) to protect the inalienable freedoms of the citizenry; (iii) a continuous tendency by the so-called international community to unquestionably embark on massive support for periodical general elections in the midst of sheer primitive accumulation of capital and human insecurity devouring the citizenry at the expense of state inertia/indifference, one is left to question the yet omnipresent faith in the gospel of liberal democracy at this historically peculiar political juncture of the Congo situation.

The debate over a constitutional crisis looming large

2016, though not yet through, arguably presages a looming crisis of legitimacy of power on the political tapestry of the DRC. Joseph Kabila, at the country’s presidency since 2001, will have exhausted his constitutionally legitimate hold onto power on 19 December 2016, following his previous and constitutionally last re-election for a five-year term of office in 2011.

For the body in charge of the organisation of the elections—Commission Electorale Nationale Indépendante (CENI)—as for the ruling party and its political coalition (Alliance pour la Majorité Présidentielle, AMP), the holding of this year’s presidential and legislative elections is squarely condit
ioned by the review and updating of the 2011 voter register—an exercise which calls for a new population census, taking minimally sixteen months (slipping into August 2017). For the political opposition as for the so-called international community (self-assessed democracies from the geopolitical West), the holding of the elections in due course—before the end to the constitutional mandate for the incumbent president and legislators—remains a condition sine qua none for restoring the DRC on the yet increasingly elusive democratic path.

Finally, the recently launched political dialogue (which has gathered together the AMP, some parties of political opposition and a few representatives of the civil society) under the auspices of former Togolese Prime Minister Edem Kodjo on behalf of the African Union, now seems to have rescheduled the holding of this year’s presidential and legislative elections sine die. In hindsight, for more than thirty years, President Joseph Mobutu had monopolised political space in Zaire/DRC such that the renewed multi-party competition in the 1990s led to what Thomas Turner termed the emergence of two vast, ill-defined political tendencies: the presidential tendency and the ‘sacred union’ of the opposition. Interestingly, the political discourse that was characteristic of the (in)famous Conference Nationale Souveraine during the democratisation phase in the Second Republic is being relayed in the present debate over the legitimacy of the soon-expiring constitutional mandate of the Kabila regime.

I am struck less by the propensity that has come to characterise the political vibe across the spectrum of the political divide than by the sheer lack of a considered historical reflection for such an unfolding situation with yet insightful precedents in the political annals of modern Congo. That a huge political-constitutional crisis looms large for the country’s foreseeable future is no first-ever occurrence in the history of modern Congo as the current political debate on the legitimacy of the Kabila regime post-19 December 2016 seems to suggest. No doubt, both the demand for and the lack of the holding of general elections (presidential and legislative) for the establishment of a new political dispensation post-19 December 2016 presages a certain degree of incertitude replete with a potential for political destabilisation in the anticipatable horizon. But to bestow upon the current looming crisis the potential of an unprecedented political instability—the kind of a ‘political tsunami’ as recurrent in various analyses (whether policy, academic or press)—is tantamount to inflating the contemporary over its historical precedents with no sound basis whatsoever.

Casting a historical light onto the contemporary

The bone of the contention in the unfolding political situation in today’s DRC can be summed up in the following question: If President Joseph Kabila wants to continue assuming the presidency post-19 December 2016 in view of no presidential elections ushering in a new officeholder, will he be entitled to the position or will he simply be an usurper? Evidently, in answering this question both those for the AMP and those against it have brought forth the point that, as incumbent, Joseph Kabila was sworn-in under a fairly clear-cut constitution that specifies who can and who cannot rule—those against the AMP producing reasons why he cannot and those for the AMP arguing that he can. By and large, the idea of a constitution, whether as a fixed document (as the Lockean American is likely to envision it), or as a set of well established and consistently followed customs and precedents (as the Hobbesian British is likely to see it) is crucial here.

Yet, any discussion of legitimacy assumes that the resort to historical precedents will produce a clear and unambiguous answer on the correct rules to follow. John Thornton, however, aptly points out that such an attitude also assumes that the constitution is essentially fixed and unchanging. Indeed, constitutions may appear unchanging at times, but typically such times are situations in which there is a stable, unchallenged political establishment, in which most political actors accept the historical or genealogical validity of the precedents and are willing to channel their personal and group ambitions along the lines provided in the constitution. But the idea of a fixed constitution, as Thornton further points out, can hold only in a situation of stability and widespread agreement on what the rules are: In situations where political conditions are changing, the fixity of constitutional law quickly breaks down.

To illustrate this, Martin Chanock’s study of customary law in colonial Zambia and Malawi argues that in the confused period of the late nineteenth century there was no consensus on what law was, if there had ever been a law. Indeed, a uniform law appeared only with the establishment of a dominant colonial state, as traditionalists, colonial lawyers and the administration gradually shaped a ‘customary’ law out of bits and pieces of received precedent to make a new legal system that served their own needs.

To cite but one historical occurrence, Thornton reveals to us that the political struggle of the late sixteenth and early seventeenth centuries in the Kingdom of Kongo engendered rivalries and power struggles which reduced consensus about the exact nature of the constitution. The effect of this political rivalry on constitutional consensus is illustrated by a succession crisis between 1615 and 1630 that had generated a substantial correspondence from rival factions of the Kongo royal family and their supporters, in which they often cited completely opposed principles extracted from the ‘most ancient customs and laws’ as found in the ‘chronicles of those kings.’ Never was the debate about whether constitutions or constitutional reasoning did or did not exist; all might agree that there was, or at least ought to be, a constitution. Rather, their conflict was over exactly what it was. Ultimately, Thornton underscores, the real resolution of the constitutional problems lay as much in who could win the struggles in the material field, through marshaling supporters or armies, as in who could convince their rivals of the truth of historical or legal precedents: The arguments of the material victors were obviously quite likely to be accepted even if they were untrue.

A series of letters (26 in total, between 1613 and 1643) from Kongo monarchs to Rome, principally addressed to the “protector” of the Kongo Kingdom in Rome, Juan Bautista Vives—put into a single codex in the Vatican Library,Vaticana Latina MS 12516—brings to the fore personal ambition and the complexities of Kongo politics in the midst of a complex ecclesiastical struggle fought by Kongolese and Iberians (as well as the Roman Curia) in Africa and in Europe. Particularly, during the struggle for the control of the Kongolese throne in the mid-1620s, internal politics of the Kongo played a major role in how events and institutions of the country were reported by all witnesses, whether they were long-term knowledgeable residents, Kongo rulers themselves or relatively short-term residents. Political crises and intrigues wracked Kongo during the period that stretched from the death of King Alvaro II (1614) until the accession of Garcia II (1641), and in reality many conflicts remained unresolved until the mid-1650s.

With regard to the issue of the rules of succession to the Kongolese throne, Thornton stresses that the evidence supplied in the series of correspondences of the Kongo rulers in that period is yet contradictory and clearly shaped by political considerations. King Alvaro III, for instance, ascended to the throne by overthrowing his uncle Dom Bernardo II in 1614, and in a letter to Pope Paul V explained his action in words revealing constitutional principles at stake. In stating a number of constitutional principles in his letter, Alvaro III implied that the kingdom belonged to him, appar
ently by right of descent to a close relative, perhaps even primogeniture, and dismissed the basis for Bernardo’s claims for the latter was only a bastard half-brother of the king. However, other sources interested in this outcome made an argument for different constitutional principles altogether, implying that Bernardo II was a legitimate ruler by right of being a brother of the dead Alvaro II, suggesting fairly loose rules of descent, more so for Alvaro II not having a legitimate son by the Queen, his wife. Hence, these two contradictory accounts reflect the parties interested in casting Kongo’s rules of succession in a particular light.

Interestingly, the succession of the next king, Pedro II also raised constitutional problems. Particularly noticeable in Pedro’s letter to Vives for his legitimation was his contention that the position of king was elective as per the ‘most ancient laws and customs of this kingdom’ and not hereditary, and that the country could not support a regency—key issues in Pedro’s claims against the infant son of King Alvaro III, but clearly different from Alvaro’s contentions about his own succession. In Thornton’s final analysis, therefore, whether Kongo’s system of succession was elective or hereditary, whether regents were or were not tolerated, or rules of kinship determined eligibility for succession are all open questions, which cannot be answered simply by matching internal (from Kongolese rulers themselves) sources against external (from witnesses, whether long-term or short-term residents) ones.

By way of historical extrapolation, I dare posit that the current political debate over Kabila’s hold of office post-19 December 2016—commonly referred to as glissement du regime—is reminiscent of the debate over regency in seventeenth century Kongo. Viewed against this historical backdrop, the current political debate on a looming constitutional crisis in the DRC only points to a growing feeling of déjà vu and emptiness, which sadly brings to the fore the ‘irony of liberal democracy’ as disempowerment and lassitude. Isn’t this constitutionally thorny issue ofglissement too an open question whose answer cannot be provided simply by putting forth one interpretation of Article 70, Clause 1 of the Constitution of the Third Republic (end of term of office) against the other (continuation of assuming office up until the swearing-in of a new officeholder)? Realising that each of these interpretations ultimately intends to present its own answer to fit into a political environment created both inside and outside the country is perhaps the first step in the appreciation of the limits of such dichotomous reasoning over the current looming constitutional crisis.  

From liberal democracy to politeia

A close reading of the political history of most of post-independence Africa, and the DRC in particular, seems to suggest that very little has been improved upon in terms of institutional capacity to build viable governance structures for conflict management—political or otherwise. Sadly, it is as though the DRC is either bereft of any significant lessons from its own past experiences recorded in its socio-political annals (oral and written) or immune to lessons-learning (whether classical or much more contemporary) from the available literature recorded in the neighbouring contexts. It is no exaggeration to ponder that on a balance sheet of political governance, due to this lack of historical lessons-learning, the DRC (and the continent at large) still registers more liabilities than assets. And this is truly reflected in the disillusionment about the ways in which the performance of liberal democracy by way of emphasis on periodic general elections is now akin to an attempt at squaring circles.  In his reflections on the ideal type of a political community, Jean-Jacques Rousseau pondered:

“If Sparta and Rome have perished, what state can hope to last for ever? If we want the constitution that we have established to endure, let us not seek, therefore, to make it eternal… The political body, like the human, begins to die as soon as it is born, and carries within it the causes of its own destruction. But the one and the other can be more or less robustly constituted, so as to be preserved for a longer or shorter time.”

In his Politics (Book III), Aristotle described three forms of government and the three corruptions of them—‘tyranny’ as a deviation from kingship, ‘oligarchy’ from aristocracy, and ‘democracy’ from polity (politeia). Aristotle posits that tyranny is rule by one person for the benefit of the monarch while oligarchy is for the rich, and democracy is for the benefit of the poor. Hence, none of these forms of government (constitutions) according to Aristotle is for their common profit. But when the multitude governs for the common benefit, it is called by the name common to all constitutions, namely, politeia. Remarkably, as the past two experiments of elections in the DRC have shown, resorting to the ballots and not to the gun is no guarantee for restoration of firm political order—let alone a politeia.

Remarkably, the insistence on the organisation of elections for purposes of legitimisation of power may simply not be very meaningful in the first place—a hollow ritual and more so one that does provide an otherwise autocratic regime with a façade of legitimacy—or, worse still, may lead to a renewal of violence only capable of worsening an already bad situation. To be sure, the West itself, David Van Reybrouck reminds us, has been experimenting with forms of democratic dispensation for the last two and a half millennia, but it has been less than a century since it has started putting its faith in universal suffrage through free elections. If anything, therefore, Van Reybrouck maintains that the holding of general elections should not be the kickoff to a process of national democratisation, but the crowning glory to that process—or at least one of the final steps.

Yet, Samuel Huntington has told us that when an American is asked to design a government, he or she comes up with a written constitution, bill of rights, separation of powers, checks and balances, federalism, regular elections, competitive parties—all excellent devices for limiting government. The Lockean American, Huntington further points out, is so fundamentally anti-government that he or she identifies government with restrictions on government: His or her general formula is that governments should be based on free and fair elections. But, perhaps a pertinent question worth our considered reflection is whether this formula is truly relevant from the vantage point of the DRC’s historically peculiar political conjecture today? At least the previous two experiments of elections in the DRC (the latter more so than the former) lucidly demonstrate that the holding of universal suffrage for presidency and the legislature was but wrong prioritisation of items on the political to-do list of a country in a severely fragile state of affairs following devastating armed conflicts, coupled with state absenteeism in most of the dispensation of the public good.

Indeed Western political experts, as Van Reybrouck eloquently put it, often suffer from ‘electoral fundamentalism’ in the same way macroeconomists from the International Monetary Fund and the World Bank not so long ago suffered collectively from market fundamentalism: They believe that meeting the formal requirements of a system is enough to let a thousand flowers bloom in even the most barren desert. For a country hitherto torn apart by insurgencies to the brink of utter collapse and limping from decades-long of fragility and pockets of political strife and civil destabilisation, the organisation of general elections per se in the quest for a democratic political order ironically suffocates all opportunities for a ‘democracy-from-below’, for an establishment of a politeia.

The characteristic winner-ta
kes-it-all kind of elections (as has been witnessed in the previous Congolese performances) could only contribute towards worsening an already bad post-war situation; the pursuit of liberal democracy (reduced to electrocracy) becomes a matter of life and death, a zero-sum game whereby the elected government sees nothing else other than a systemic crush of the defeated elite together with their supportive (real or perceived) constituencies. In the final analysis, therefore, the script of the liberal democracy is ironically performed against the grain of a truly democratic order: the hunger for free and fair elections only ends up producing a power-hungry political elite characteristically hostile to the notion of democracy as once practiced by ancient Athenians. This, in a sense, becomes the greatest paradox of liberal democracy, carefully cajoled its Western proponents!

To conclude, there seems to be no better window of opportunity for a real pursuit of ‘democracy from below’—the establishment of a politeia—in the DRC than today as the current political debate over a constitutional crisis unfolds. A dichotomous reasoning vis-à-vis the eventual constitutional crisis that looms large only limits the true potential for this auspicious opportunity for a better governance compact. Once again, in face of this trial of a looming political-constitutional crisis post-19 December 2006, the onus squarely rests on the Congolese people who should embrace this challenge and transform it into an opportunity ‘to govern themselves.’ After all there is no better translation of a politeia than for a people to govern themselves (as opposed to be merely governed by a hijacking political elite, whether resulting from a ritualised ‘free and fair’ election or not).

The embedded opportunity in the looming constitutional-political crisis in the DRC is the chance for the Congolese people to govern themselves in ways which transcend the current rather sterile debate pitting the argument forglissement du regime against that of a new transition politique altogether. A time for Congolese historical discernment is up, if not long overdue, to recognise the handwriting of the Congolese destiny on the wall of the current generation. From this historical vantage point, neither the holding of ritualised elections à la liberal democracy nor the holding of a political dialogue as an elitist affair seems to point to a way out of the looming constitutional-political crisis of legitimacy. Perhaps, considering that this crisis of legitimacy post-19 December 2016 should be approached as a much more open-ended question rather than a closed-ended question presented in a binary fashion (fresh elections or continuation of the incumbent regime) may go a long way in deflating it.

A much less conspicuous yet more rewarding task is to transcend the two-pronged discourse (immediate elections versus a new transitional political order) which so far frames the country’s current political debate in which both the Kodjo-led political dialogue and the CENI are embroiled. What could be a third way out? Wrestling politics away from being an elitist affair and thrusting it back unto the domain of the citizenry—a tilt in the balance of forces of political power from the state to society—is what I argue for as a third way to the rather stalling debate. Pausing as the whole Congolese body politic to think through what the Congolese people do think about what their political destiny (as state and as society) should look like is in itself a worthwhile endeavour, far much more gratifying than stopping at the organisation of general elections for the legitimisation of a ‘new’ hijacking political elite to be in charge of society. Isn’t it?

* David-Ngendo Tshimba is a PhD Fellow at Makerere Institute of Social Research, Makerere University, and Assistant Lecturer, Uganda Martyrs University. He can be reached at: dntshimba@gmail.com


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