The Democratic Process in the DRC.

Chapter Two: The Constitutional Referendum in DRC

A. Political Context

The constitutional referendum organized on 18 and 19 December 2005 has been a strong participation with more than 75% of approval leading to the election in 2006, after sixteen years and a very long political transition period which started on 24 April 1990.

But in the provinces of Kasai Oriental, Kinshasa and Kasai Occidental, few people voted. These provinces are the strongholds of main political opposition party, UDPS, managed by Etienne Tshisekedi, who had called for a boycott of the referendum and all the democratic process for many reasons: gross fraud, serious procedural irregularities, opposition party withdrawals, manipulated Independent Electoral Commission by Joseph Kabila's political party and International Community to ensure victory of Kabila still a profound source of tensions and crises which cannot been contribute to true democratic process. Even, only Joseph Kabila's tendency controlled the public media continued to serve it as propaganda tools. Actually in DRC, television and radio remained firmly under Kabila strong control, and government continued to threaten critical newspapers, independent radio (CCTV and Canal Kin) stations and same journalists killed (Bapupa Mwamba, Franck Ngyke and his wife Hélène Mpaka,...) these challenged Kabila's government abuses. This is a political context while the first multi-party democratic election in the Democratic Republic of the Congo took place on the 30 July for the first round and the second is going to be organized on the 29 October by violating electoral law which provided that the second round can been organized fifteen days after the publication of the result of first round if no one meet the majority.

The new Congolese constitution has been promulgated on 18 February 2006 by Joseph Kabila, which makes provision of a new flag and emblem, but in practice, this new constitution never brought an end to decades of war and chaos in country.

The drafting of a constitution is a technical job which like other technical jobs, is best done by those with experience of it (^23(*)). This constitution was written by members of Joseph Kabila political party, which includes others people from ex-leaders as Jean-Pierre Bemba, Arthur Zahidi Ngoma...but most of them don't have any constitutional law background to do so.

Everywhere, it is important to remember that the success of any constitution depends very largely on the support given to it by all people. I have already emphasized that the social and political order depends upon the confidence of the people. In the Democratic Republic of the Congo, many experiences shows us that no one as political party cannot solve alone the national political conflict, maybe it can just aggravates the conflict process. Community participation is an absolutely vital element of building new society and implementing any community development project.

Community participation must be a community-driven process and centre on very local and specific kinds of political negotiations. According to Manegabe (^24(*)) all Congolese's political meetings organized without an important political party doesn't bring a good result. That is a specific case of this transition political period where the UDPS (Union for Democracy and Social Progress) of Etienne Tshisekedi is out of the transitional political process.

If for example, the constitution of the United States of America (1776) was carefully designed to prevent such tyrannies, the new Congolese constitution, according to professor Mukadi (^25(*)) is a just a `pseudo-constitution' which never presents a background of a model of modern constitution. It is easy to find contradiction in the core of this new constitution, we can't build democracy by contradiction. The draft constitution which has been accepted at the referendum proclaims the secular character of the Democratic Republic of the Congo. But unfortunately, this constitution curiously appears to be contrary to the very values and principles that are intend to promote. In fact, the Preamble as well as Article 74 of the draft constitution makes explicit reference to God. Why?

On the one hand the people of DRC are to declare their responsibility `before God, the Nation and the World', and any Congolese elected President of the country, is expected to take the oath of office solemnly in the name of God and the Nation (^26(*)). Since the Congo Free State, there in no State religion in the Democratic Republic of the Congo.

* ²³ Democracy in Africa. Op.cit. p.70

* ²⁴ MANEGABE, Charlemagne: De la Confiscation de la Souveraineté dans les Etats de l' Afrique Noire.

Mémoire de licence en droit, Unikin, department de droit public interne, 1996-1997, p. 43

* ²⁵ MUKADI Bonyi is a lawyer at the Democratic Republic of the Congo's Supreme Court of Justice and

Ordinary Professor at University of Kinshasa, School of Law, who is analyzing now the new DRC's

constitution and find some wrong judicial, political and constitutional grammar.

* ²⁶ Article 74 of the DRC's new constitution.