DR Congo's Electoral Law for 2011: Choosing Continuity
Thierry Vircoulon, Marc-Andre Lagrange, On the African Peacebuilding Agenda |
15 Jul 2011
On 15 June 2011 the Congolese Parliament adopted, after nearly three months of debate, the new electoral law.[i] The Senate, or upper house, controlled by the opposition, and the National Assembly, or lower house, controlled by the ruling coalition, both voted for an electoral law which ultimately remains very similar to that governing the 2006 elections. Parliament took three months of debate to reject most of the amendments proposed by the ruling party (PPRD). In doing so it demonstrated that the executive could not simply trump its interests.
1. The government’s proposed amendments
An atmosphere of great suspicion greeted the ruling party’s proposed new electoral bill last March. In the wake of constitutional changes widely perceived to benefit President Kabila[ii], rumours that the proposed electoral law would seek to exclude certain candidates on the basis of their age, residency or tax returns were persistent. The text presented by Tunda Yakasendwe, national deputy for the PPRD, offered significant modifications to the Congolese electoral system, starting with the voting system.
Perhaps most important, it proposed changes to the way in which deputies are elected. Its Article 119 modified the current system of proportional representation.[iii] In districts where one list receives an absolute majority (more than 50 per cent) of votes, that list would take all seats. In districts where no one list attains an absolute majority, proportional representation would be retained, with lists receiving seats based on their vote totals.[iv]
This amendment, which favoured big political parties, sought to reinforce the ruling party’s grip on the National Assembly which, to date, includes 69 parties and in which the PPRD only has 111 seats out of 500. Such an electoral disposition would have obstructed independents (63 were elected in 2006), eliminated some smaller parties from national representation (56 parties currently have less than 5 seats, including 31 with only 1 seat) and, as such, would have put an end to the necessity of political alliances which has dominated parliamentary life during this legislature.
The proposed bill put forward by the government included other innovations which, while not as fundamental as the amendment to lower house elections, were no less strategic. These included higher deposits for candidates, new modalities for co-opting traditional leaders, revising Kinshasa’s electoral districts and new campaign rules.
In 2006 the non-refundable deposits for presidential and legislative candidates were set at $50,000 and $250 respectively. The proposed bill increased these to $100,000 and $5,000,[v] imposing significantly more restrictive financial barriers on eligibility.
It also transferred responsibility for the appointment of traditional leaders’ as provincial assembly members from the Provincial Assemblies themselves to the Ministry of Internal Affairs.[vi] As in some other African countries,[vii] this sought to affirm the state’s role in provincial and traditional affairs and allow the ruling party to impose sympathetic traditional leaders.
Finally, the new text stipulated that the 24 communes of Kinshasa would become electoral districts, replacing the four existing districts.[viii] Kinshasa is currently a bastion of the opposition, but this new division would have created several districts in the capital favouring the ruling party or its allies.[ix]
2. Parliamentary resistance
The ruling party expected the legislature to take only a few days to rubber stamp its changes, but instead parliamentarians spent three months over the bill, during which they amended it extensively. The text adopted by both houses on 15 June 2011 rejected several proposed changes, preserved others, but on the whole returned to the system used for the 2006 polls.
The prospect of changes to the voting system used for deputies crystallised opposition against the proposed law. Scared by prospects of an increased dominant ruling party[x] – and, in some cases, of losing their seats – deputies rejected the proposed bill on 11 May 2001 with 236 votes, against only 23 who favoured the bill and 12 who abstained. The bill’s rejection, therefore, united opposition deputies and those from the majority, especially those non-PPRD deputies that already felt marginalised in the ruling coalition.[xi] The National Assembly’s composition, which includes strong representation of small parties and independents, foresaw a coalition of minorities against the electoral bill proposed by the PPRD. Moreover, knowing that the government faced a short window for its reforms,[xii] parliamentarians upped the pressure by delaying their scrutiny of the text, and then linking final debates of the bill to salary negotiations.[xiii]
In the end parliamentarians discarded the proposed changes to the voting system, the increase in candidate deposits (which were kept at 2006 levels), the changes to the Kinshasa electoral districts (only four districts remain, as in 2006), and the Interior Ministry’s control over co-opting traditional leaders.[xiv] As in 2006, the diaspora has not been enfranchised. Furthermore the constitutional principle of parity between men and women[xv] was only included as a desired condition, rather than a legal requirement for electoral lists, as requested by some parties.[xvi] Women currently represent only 10.4 per cent of the lower house and 4.63 per cent of the upper house.
Although rejecting major changes, the legislature nevertheless introduced several innovations to the new electoral law:
§ Regulating the cooptation of traditional village chiefs and their de-politicisation. Chiefs can no longer undertake two consecutive mandates and cannot belong to provincial assemblies if they are already members of political parties.[xvii] The CENI, rather than the Ministry of Interior, determines which chiefs sit in provincial assemblies.
§ New eligibility criteria: those found guilty in courts of last appeal of sexual violence or war crimes are not eligible to run as candidates.[xviii] Education criteria were also introduced for all candidates and coupled with criteria for experience. In an attempt to prevent the use of state resources for campaigns, parliamentarians retained the prohibition of the managers of public companies and civil servants competing as candidates. Managers of combined companies (state and private) are, however, permitted to run.[xix]
§ In order to conform to the constitution,[xx] electoral disputes fall under the jurisdiction of the Constitutional Court for presidential and legislative elections, the Administrative Court of Appeals for provincial elections, and the Administrative Tribunal for urban, communal and local elections.[xxi] However, as yet these courts have not been created. Thus, as in 2006, the Supreme Court of Justice will settle electoral disputes. On this important point, the recommendations of the European Union have not been heeded by the Congolese legislature.[xxii]
Their adoption of an electoral law devoid of the government’s proposed reforms was accompanied by a rebuttal from both houses of the government’s request to legislate via decree during the parliamentary holidays, as stipulated in article 129 of the constitution.[xxiii] Here again lawmakers reaffirmed their authority as a check on executive power.
The adoption of the electoral law by both houses of the national assembly does not signify that the legal framework for elections is complete. Deputies will convene for an extraordinary session in July and the senators will meet in August to finalise the annexes to the electoral law, which include determining electoral districts. However, according to the CENI schedule, candidate registration must take place between 4 August and 6 September. Annexes to the electoral law defining district boundaries and the allocation of seats to districts must be adopted by Parliament before candidate registration starts.
A delay would be all the more problematic given that voter registration – which is nearing its end – has taken longer than expected. Moreover several provinces saw demands to extend it and the opposition has denounced irregularities. On 4 July 2011, a memorandum by the opposition party UDPS complaining of voter registration irregularities gave rise to the first clash between police and protesters in Kinshasa.[xxiv] CENI has refuted all accusations of fraud while the UDPS has denounced the exclusion of voters in certain territories of the Kasaï, while in Katanga and Maniema, strongholds of the Kabila family, 103 per cent and 115 per cent of expected voters have been registered.[xxv] Crucially, voter registration influences the political weight of provinces, given that the number of seats per province is determined by their numbers of voters.[xxvi] The transparency of the process, especially including the verification of the voters’ list, is, therefore, vital in countering suspicions of manipulation.
Paradoxically, changing the electoral law has been more difficult than changing the constitution. The modifications intended by the ruling party this time sought to shift rules for the election of deputies, which in many cases may have affected their re-election. Parliamentarians sought to maintain an electoral landscape as open as it was in 2006, when some 10,000 candidates competed as national candidates and about 14,000 for provincial office. In a country of more than 400 tribes, where the National Assembly comprises 70 local parties, where parties often possess solid regional bases[xxvii], and where decentralization is still problematic, highly proportional elections are seen to guarantee representation for the numerous groups in the DRC, and to protect against the domination by one province or ethnicity over others. Parliament’s rejection of the ruling party’s reforms served to remind those in power not only that it does not exist merely as a rubber stamp for the executive, but also that the Congolese political system should reflect the country’s diversity.
[i] The government’s proposed electoral bill was introduced in Parliament upon the opening of the spring plenary sessions and was finally adopted on 15 June 2011, the last day of this Parliamentary session.
[ii] On 15 January 2011, President Joseph Kabila put several controversial constitutional reforms to the vote during a joint session of with both houses of parliament, in order to change the presidential elections from two rounds to a single round. This waived the requirement that the winning presidential candidate needs more than 50 per cent in the first round to avoid a second round and allowed a candidate to win the presidency with less than 50 per cent of votes. For more information, see Crisis Group’s Africa Briefing, No. 157 “Congo: The Electoral Dilemma”, 5 May 2011.
[iii] Article 118 of law 06/006 (9 March 2006) regarding the organization of presidential, legislative, provincial, urban, municipal and local elections. According to the existing voting system for the lower house, 500 deputies are elected by proportional representation with open lists from 169 districts, which each elect between one and four deputies depending on their number of registered voters.
[iv] Article 119 of the proposed bill regarding the organization of presidential, legislative, provincial, urban, municipal and local elections, registered with the secretariat for the cabinet of the president of the National Assembly on 11 March as No. 0856, and with the bureau for [parliamentary] sessions on 14 march as No. 015.
[v] Article 106 and 132 of the proposed bill concerning the organization of presidential, legislative, provincial, urbane, municipal and local elections, registered with the secretariat for the cabinet of the president of the National Assembly on 11 March as No. 0856, and with the bureau for [parliamentary] sessions on 14 march as No. 015.
[vi] Paragraph 5: on co-opting traditional leaders, articles 151, 152, 153 of the proposed bill concerning the organization of presidential, legislative, provincial, urbane, municipal and local elections.
[vii] From South Africa to Chad, attempts at politicizing traditional chieftains by political powers are numerous. Cf. C-H Perrot and F-X Fauvelle Aymar (eds) Le retour des rois. Les autorités traditionnelles et l’Etat en Afrique contemporaine, Paris, 1999. For a recent example in Chad, cf. Crisis Group’s Africa Briefing, No. 78 “Chad’s North West: The Next High-risk Area?”, 17 February 2011.
[viii] Article 115 of the proposed bill concerning the organization of presidential, legislative, provincial, urbane, municipal and local elections, registered with the secretariat for the cabinet of the president of the National Assembly on 11 March as No. 0856, and with the bureau for [parliamentary] sessions on 14 march as No. 015.
[ix] In 2006, the presidential majority obtained 17 seats in Kinshasa, including 4 for the PPRD, out of 58 in the legislatives, and 8 seats out of 44 in the provincial elections. Numbers cited from Thierry Coosemans, Radioscopie des urnes congolaises, Paris, 2008.
[x] Interview by Crisis Group with a politician from the presidential majority, Kinshasa, 4 June 2011.
[xi] On 18 March 2011, under the impetus of Joseph Kabila, the AMP became the Presidential Majority (PM). While the AMP was an alliance of parties on a pretty equal footing, the PM is structured around the PPRD and only political parties with a national representation can belong to it. The stated objective of this transformation was to assure that the PPRD possessed a majority representation in the heart of the PM, as well as in any future government by reducing the number of alliances with minority parties in the heart of the coalition. Regarding the transformation of the AMP into the PM, see Crisis Groups’ Africa Briefing, No. 175, “Congo: The Electoral Dilemma”, 5 May 2001, p.6.
[xii] “RD Congo-Elections 2011: Kabila remet les pendules à l’heure”, Le Potentiel , 15 April 2011.
[xiii] “Boycott des plénières – Les Députés très fâchés!”, La Postérité, 25 March 2011; “Désertion des plénières à l’Assemblé Nationale – Des députés revendiquent leurs indemnités de sorties”, L’Observateur, 29 March 2011; “Impayés depuis deux mois: Les élus du peuple refusent de clôturer la session sans argent”, Le Forum des As, 15 June 2011.
[xiv] “Loi électorale: le pouvoir recalé”, La Libre Belgique, 15 June 2011.
[xv] Article 14 of the constitution of the Democratic Republic of Congo, Official Journal, 18 February 2006.
[xvi] “Every list is established bearing in mind equal representation between men and woman and the promotion of those living with a handicap. Nevertheless, the non-realization of parity between men and women and the non-presence of those living with a handicap shall not be a motive for the inadmissibility of a list.” Article 13 of the law amending and enhancing law 06/006 (9 March 2006) bill concerning the organization of presidential, legislative, provincial, urbane, municipal and local elections.
[xvii] Article 154 of the law amending and enhancing law 06/006 (9 March 2006) concerning the organization of presidential, legislative, provincial, urbane, municipal and local elections of June 2011.
[xviii] Article 10 of the law amending and enhancing law 06/006 (9 March 2006) concerning the organization of presidential, legislative, provincial, urbane, municipal and local elections of June 2011.
[xix] Article 10, paragraph 6 of the law amending and enhancing law 06/006 (9 March 2006) concerning the organization of presidential, legislative, provincial, urbane, municipal and local elections of June 2011.
[xx] Article 161 of the constitution of Democratic Republic of Congo, Official Journal, 18 February 2006.
[xxi] Article 27 of the law amending and enhancing law 06/006 (9 March 2006) concerning the organization of presidential, legislative, provincial, urbane, municipal and local elections of June 2011.
[xxii] Mission d’observation électorale de l’Union européenne en RDC, Elections 2006, Rapport final, recommandation 30, 31, 32, p. 64.
[xxiii] “Le gouvernement rate son coup au Sénat”, Le Potentiel, 16 June 2011.
[xxiv] Memorandum by the UDPS sent to CENI concerning malpractices observed during electoral enrollment, 4 July 2011. “Le sit-in de l’UDPS dispersé dans la violence”, Afrikarabia, 4 July 2011.
[xxv] CENI source.
[xxvi] Article 115 of the law amending and enhancing law 06/006 (9 March 2006) concerning the organization of presidential, legislative, provincial, urbane, municipal and local elections of June 2011
[xxvii] The two oldest parties of the Congolese political landscape (Antoine Gizenga’s PALU and Etienne Tshisekedi) have their electoral base Bandundu and Kasaï respectively.