A Constitutional Coup in Congo

After a pair of legal showdowns, President Joseph Kabila looks set to extend his term in office without holding an election.

Democratic Republic of Congo (DRC) President Joseph Kabila looks on at the 32nd summit of the Southern African Development Community (SADC) at Maputo's Joaquim Chissano Conference Centre on August 17, 2012 in Maputo. During their two day meeting the heads of the 15 nation bloc will turn their attention to conflict in the Democratic Republic of Congo as well as the the border dispute between Malawi and Tanzania. A quarter of a million people have fled the eastern DRC since April when a rebel group calling itself the M23 took up arms against the government. AFP PHOTO / STEPHANE DE SAKUTIN        (Photo credit should read STEPHANE DE SAKUTIN/AFP/GettyImages)
Democratic Republic of Congo (DRC) President Joseph Kabila looks on at the 32nd summit of the Southern African Development Community (SADC) at Maputo's Joaquim Chissano Conference Centre on August 17, 2012 in Maputo. During their two day meeting the heads of the 15 nation bloc will turn their attention to conflict in the Democratic Republic of Congo as well as the the border dispute between Malawi and Tanzania. A quarter of a million people have fled the eastern DRC since April when a rebel group calling itself the M23 took up arms against the government. AFP PHOTO / STEPHANE DE SAKUTIN (Photo credit should read STEPHANE DE SAKUTIN/AFP/GettyImages)

KINSHASA, Congo — President Joseph Kabila is a man of few words, but it wouldn’t take many to reassure people that he intends to step down in December, when his second elected term in office ends, instead of dragging his country into a constitutional crisis. The Democratic Republic of the Congo has never had a peaceful transfer of power, and the president’s unwillingness to commit to vacating office on time has many worried that it won’t have a transfer of power at all this year. Six months before voters are supposed to go to the polls, Kabila stands accused of deliberately hindering electoral preparations in order to engineer another term.

The president’s alleged strategy for remaining in power, known in Congo as glissement, French for “slippage,” has typically been more about what his government hasn’t done — adding millions of newly eligible voters to the electoral roll or releasing funds due to the electoral commission — than what it has. But, in recent weeks, glissement seems to have entered a proactive phase. In the span of eight days this month, the government indicted Moise Katumbi, a popular former governor who represents the biggest electoral threat to Kabila, and secured a critical court ruling that will allow the president to stay in office until his replacement is elected, even if the vote is delayed as the electoral commission has hinted it will be. The first development goes a long way toward removing a formidable challenger, while the second gives him a legal basis for remaining in office for the foreseeable future.

A timely ballot is now “a largely unrealistic scenario,” said Christoph Vogel, a researcher focusing on Congo at the University of Zurich. In private, foreign diplomats in the capital Kinshasa go further. “I think everybody knows there won’t be elections this year,” one long-serving official at an African embassy told Foreign Policy.

This was never supposed to happen. Having had enough of despots, the Congolese people overwhelmingly approved a new constitution in 2006 that enshrined executive term limits, widely seen as a prophylactic against future hijacking of the presidency. Kabila was popularly elected for the first time later that year — he was installed without a vote in 2001 after the assassination of his father, the former rebel leader Laurent Kabila — and re-elected in 2011 polls that were marred by irregularities. In a law-abiding world, the last day of his presidency would be Dec. 19, 2016.

But, in Congo, the law is at best a hotly contested battlefield and at worst a powerful tool for those in control, a fact driven home by the May 19 indictment of Katumbi on charges of recruiting mercenaries and threatening the “internal and external security of the state.”

Aside from Kabila, Katumbi is the most famous politician in Congo. He is also the owner of TP Mazembe, Africa’s champion football club and a source of considerable Congolese patriotism. Born into a wealthy family, Katumbi became wealthier still providing support services to international mining companies operating in the mineral-rich Katanga region from which the government in Kinshasa derives nearly all of its export earnings. While his business empire thrived, Katumbi served as governor of Katanga from 2007 to 2015 as a member of the president’s party, a lengthy association which continues to raise questions about possible corruption. “Many people have significant doubts about how Katumbi amassed his fortune,” said Laura Seay, a professor at Colby College who specializes in Congo.

Despite having done well as a member of Kabila’s government, in September 2015, Katumbi abandoned the president’s party, citing his disapproval of “any pretext to delay elections,” and embarked on a campaign to ingratiate himself with prominent members of the opposition in the hope that they would put their party machines at his disposal. On May 4, he officially launched his campaign for the presidency.

Earlier that same day, Kabila’s justice minister, Alexis Thambwe Mwamba, had launched a probe into allegations that Katumbi had recruited foreign mercenaries, allegations that had conveniently aired on a pro-Kabila TV channel a week earlier. Mwamba claimed that the government had “documented evidence” of “several” U.S. and South African mercenaries being employed by Katumbi. Somewhat cryptically, he added that 658 Americans had recently entered Katanga. Darryl Lewis, an American citizen working as a security advisor to Katumbi, was arrested and branded one of the presidential hopeful’s soldiers of fortune — an accusation that the U.S. Embassy has rejected.

Katumbi has dismissed the mercenary allegations as a “grotesque lie,” but after being summoned to three closed-door hearings at the Palais de Justice in Lubumbashi, the capital of Katanga and the former governor’s hometown, he was indicted and a warrant for his arrest was issued. Large crowds of supporters had gathered for each of Katumbi’s visits to the courthouse, where they were forcibly dispersed with tear gas. Before the third hearing, police hurled stones at Katumbi’s retinue, injuring several of his companions. Katumbi himself swallowed noxious fumes from the tear gas and sought medical care after securing an adjournment.

It was from his hospital bed that he learned of his indictment six days later. The same day, however, Congo’s prosecutor-general authorized a request from Katumbi’s legal team to fly him to South Africa for further treatment. Within hours, a jet carrying the former Katanga governor was flying southward for Johannesburg. According to one of his lawyers, Katumbi is still hospitalized there.

It remains unclear why Katumbi would voluntarily leave the country so soon after declaring his bid for the presidency or why the government would allow the evacuation having just indicted him. But according to Vogel, “Katumbi’s rushed departure may, in the short run, be an acceptable deal for both the presidency and its strongest competitor.”

In part because of the suspicious timing, many spotted an effort to sabotage a promising nascent presidential bid. Katumbi had planned to kick off a nationwide campaign tour soon, a spectacle that was sure to make the government uneasy. Olivier Kamitatu, who served as Kabila’s planning minister and is now a key member of the G7, a collation of seven parties backing Katumbi, dismissed the case as “made up from scratch, without any evidence, on an invented charge.”

Delly Sessanga, a parliamentarian who heads a platform endorsing Katumbi, suggested that the case against the former Katanga governor has two aims: “First, to impede the work of the campaign and, second, to secure a verdict, not necessarily a prison sentence, but one which makes Moise ineligible to stand.” According to Stephanie Wolters, the head of conflict prevention and risk analysis at the Institute for Security Studies in South Africa, candidates with criminal records are barred from standing for the presidency in Congo.

Lambert Mende, Kabila’s communications and media minister, denied any political motivation for the probe. “The government asked the prosecutor to investigate; the prosecutor investigated and concluded that there was a problem,” he told FP.

But it is not just members of the opposition who are skeptical of the government’s claims. The U.S. Embassy in Kinshasa has said it is “deeply concerned about the accusations of mercenary activities” that it “believe[s] to be false,” and most close Congo watchers see the events of the last few weeks as a play by Kabila’s inner circle to eliminate a potent threat. “It’s not a very subtle strategy,” Wolters said, “but it indicates just how far Kabila’s elite is willing to go to cling to power.”

A senior European diplomat who spoke on the condition of anonymity was similarly doubtful: “Unless the government can show more evidence of the 600-odd mercenaries the minister claimed Katumbi has recruited, it will look very much like a manufactured and politically motivated case against him.”

As dramatic as it was, the showdown in Lubumbashi may not have been the most debilitating blow the opposition suffered this month. While the government was preparing its case against Katumbi, another hurdle to Kabila’s continued rule was simultaneously being steamrolled: the strict presidential term limits established by the 2006 constitution.

On May 11, the Constitutional Court took center stage. The country’s highest constitutional authority issued a ruling on two contested articles of the constitution: Article 75, which proclaims that the president of the Senate shall take over on an interim basis in the event of the “permanent incapacitation” of the head of state, and Article 70, which asserts that the incumbent “stays in office until the President-Elect effectively assumes his function.” The two articles had sparked a heated debate, with Kabila’s opponents arguing that he would be “incapacitated” by his illegitimacy after Dec. 19, and supporters insisting that the president must remain in office until his successor is voted in — regardless of when that might be. The court settled the matter in favor of Kabila’s partisans, 276 of whom — all parliamentarians in the National Assembly — had filed the petition asking for the ruling in the first place. The Constitutional Court effectively provided a legal basis for glissement.

Despite its vaunted status, the court, which was established by the 2006 constitution but began work only last year, is widely seen as partial to the president. Its justices were “hand-picked” by Kabila, in the words of the European diplomat, and last year it ruled that the president could appoint interim governors to run 21 new provinces he had created, a decision which angered the opposition but allowed Kabila to strengthen his grip on Congo’s far-flung areas. Many of these presidential appointees went on to win new gubernatorial terms in indirect polls in March, when local legislators were the sole electors and the opposition either boycotted or was excluded.

“It’s no surprise when this court bows in favor of Kabila,” said Samy Badibanga, a parliamentarian from the Union for Democracy and Social Progress, the largest and oldest Congolese opposition party. “The whole team comes from the presidential majority,” the name given to the alliance of political parties that supports Kabila.

Kabila’s opponents scorned this latest decision as an assault on Congolese democracy. The Citizen Front 2016, a coalition of major opposition political parties and civil society groups, called it a “constitutional coup d’état” aimed at “establishing a presidency for life for Kabila.” Vital Kamerhe, the leader of the opposition Union for the Congolese Nation, told FP that the court “has substituted itself for the National Assembly, the Senate, and the population in carrying out what amounts to a referendum and a constitutional revision.”

Alain-André Atundu, a spokesman for the president’s coalition, rejected such accusations. “It wasn’t a decision wanted by the government. It was a response to a request for an interpretation by the [parliamentary] deputies,” he said, referring to the parliamentarians — all members of Kabila’s coalition — who petitioned for the ruling.

So where does the electoral process stand six months before Kabila is supposed to exit the stage? Recent events suggest that a vote may be even more distant than previously feared. The Katumbi campaign’s false start and the Constitutional Court’s ruling come after the national election commission announced that it intends to take well over a year to update voter lists, without which millions of Congolese who’ve turned 18 since 2011 would be disenfranchised. In the meantime, Kinshasa has ramped up its harassment of opposition politicians, their supporters, and civil society organizations. And even if Katumbi can escape his current straitjacket and build momentum, it is not certain that all the major opposition parties and leaders have any appetite to unite behind his candidacy. They failed to present a single candidate in 2011 and suffered the consequences of a fractured anti-Kabila vote.

At this stage, such an imposing obstacle course lies between the opposition and an eventual vote that talk of candidates and campaigns can seem idle. At least that’s the view of Kamerhe, who finished third in the 2011 presidential poll. “First, it’s a fight just to force Kabila to hold elections,” he said.

Image credit: STEPHANE DE SAKUTIN/AFP/GettyImages

William Clowes is a freelance journalist based in Kinshasa, the Democratic Republic of Congo. Previously he was a sub-Saharan Africa analyst at a commercial due diligence firm headquartered in London.