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Impacts of COVID-19 on the democratic process in the DRC

By Pascal K. Kambale

In the Democratic Republic of the Congo (DRC), the coronavirus crisis also has a political side. As in other countries, it will likely leave a deep imprint on fragile democratic processes and significantly distort the balance of forces between the country’s political institutions. President Felix Tshisekedi has been locked in a showdown with the parliament – dominated by supporters of his predecessor, Joseph Kabila – since January 2020. The showdown has taken a dramatic turn since the beginning of the health crisis. Within the executive, the coronavirus crisis has strained the demarcation of powers between the president and the prime minister, with the former gradually encroaching on the latter’s constitutional prerogatives. And the judiciary, which has historically struggled to emancipate itself from executive control, seems to have gained some autonomy: it has taken advantage of the current uncertainties in the executive to pursue prosecutions of high-profile figures for corruption.

President v. Prime Minister

The Congolese constitutional system is based on the model of the 5th French Republic, in which the president reigns but does not govern; it is, rather, the prime minister, chosen from the majority in parliament, who defines and conducts national policy. This system is fundamentally flawed. It denies a president the ability to implement a political platform for which he or she was elected. Such a system–called “semi-presidential” or “dual-executive”–only works when the majority in parliament is favorable to the president and the latter therefore picks a prime minister who is politically loyal or sympathetic to him/her. Such has been the case in Congo since the democratic renewal symbolized by the 2006 constitution. All this changed following the 2018 elections which, for the first time in Congolese history, resulted in a president and a parliamentary majority who are not from the same political camp.

Before the 2018 elections, the question of the demarcation of powers within the executive arose only once, in early September 1960, some two months into Congo’s independence. Although the regime was parliamentary and President Kasavubu in principle exercised only ceremonial power, he paved the way for an institutional crisis, by dismissing Prime Minister Lumumba. The latter had constitutionally all executive powers as head of the parliamentary majority. He invoked these powers to in turn dismiss President Kasavubu. It took five years to resolve the ensuing political crisis, which was marred by civil war, the assassination of Lumumba, and the secession of Katanga.

The Second Republic was a reaction to the “chaos and anarchy” of the First Republic. Mobutu Sese Seko had absolute control over all branches of government and insofar as he had prime ministers, these were only mere “coordinators” of the government, which operated under the sole authority of Mobutu.

The institutional logic of the Third Republic, in which we are currently in, was agreed to at the 2002 Inter Congolese Dialogue in Sun City, South Africa and was formalized in the 2006 constitution. These reforms reflected a reaction to the dictatorship of the Second Republic. Participants wanted to prevent another Mobutu from emerging by making sure that executive powers were not concentrated in the hands of the president. They therefore crafted the current hybrid regime of the 2006 constitution, with an elected president sharing executive power with a prime minister from the parliamentary majority. This system did not produce any institutional crises during the first two legislatures (2006-2011; 2011-2018); in this period, the majority in parliament consisted of supporters of President Kabila, who handpicked all prime ministers from among loyal partisans in his own camp – with the exception of Samy Badibanga and Raymond Tshibala, both from opposition UDPS, who served as prime ministers during the 2016-2018 period which corresponds to an unconstitutional extension of Kabila’s mandate. Now, with a president from the former opposition, a parliamentary majority that expresses its hostility to him at every opportunity, and a prime minister from that majority in parliament, the situation is both different and unprecedented.

Observers and political pundits predicted that with Sylvestre Ilunga, the office of the Prime Minister was poised to exercise the fullness of its constitutional prerogatives for the first time since 2006. Mr. Ilunga had everything for that: extensive experience in government dating back to the Mobutu period (in contrast to Tshisekedi, who had never held public office); proven expertise in economic affairs as professor of economics and manager of public enterprises; a government made up with three quarters of members of his own political camp; and the parliamentary majority.

Sylvestre Ilunga Ilunkamba, Premier ministre congolais. © Twitter/Primature RDC
Sylvestre Ilunga Ilunkamba, Premier ministre congolais. © Twitter/Primature RDC

The Ilunga government took office in September 2019 and spent the rest of the year developing Budget 2020, its first budget. Already then, President Tshisekedi began to interfere, inviting himself into the budgeting process. While the government had drafted a budget of seven billion dollars, the president suspended the transmission of the budget to the parliament and, during an extraordinary council of ministers convened specifically for this purpose, instructed the government to increase the budget to ten billion. In content, both Budget 2020 and the government’s five-year plan look like an assemblage of sectoral public policy programs that the president had already announced before the formation of the government. These include programs such as the National Digital Plan, Free Basic Education, Universal Health Coverage plan or the First 100 Days Emergency Program. The constitutional demarcation – that it is the Prime Minister who defines government policy – was thus altered by the fact that the President not only participated in the definition of the government policy but made the most substantial contribution to it.

This interference then intensified when a state of emergency was declared to deal with the Covid-19 crisis. The president became increasingly involved in government policy, gradually chipping away at the powers of the prime minister. In times of crisis it is expected for the president to take a more prominent role, to reassure public opinion in line with his or her constitutional status as guarantor of the proper functioning of institutions. At times, however, Tshisekedi seems to exercise this role so enthusiastically that it encroaches on the prime minister’s purview. He has, for example, created a “COVID-19 task force” within his office, whose role is similar to that of the inter-institutional response unit which operates under the authority of the prime minister. He has also appointed a Congolese doctor based in Europe and asked him to return to the country to join the scientific response team.

The coronavirus crisis also exposed fissures within the shaky ruling coalition between Joseph Kabila’s Front commun pour le Congo (FCC) and Felix Tshisekedi’s Cap pour le changement (CACH). At times, this has made the prime minister look like a captain who has lost control over his team. When the presidents of the two chambers of parliament decided to convene a congress to “regularize” the state of emergency, they met with the prime minister, who went along with their plan. The prime minister told reporters that his government would provide support to parliament to ensure that the congress was held in the best possible conditions, providing a budget and logistics.  Despite this support, the CACH deputy prime minister and minister of the interior, Gilbert Kankonde, strongly opposed it in public.

During the same period, the FCC minister of public service, Yolande Ebongo, appointed new secretaries general (permanent secretaries) in all government departments and agencies. This decision was immediately denounced by the presidency as illegal, as it is usually the president who makes these appointments. According to the minister, the decision had been taken in consultation with the prime minister. The latter first protested that an official of the presidency addressed the minister directly without going through him, before ordering the minister to cancel these appointments which, according to the minister, he had initially approved.

It was not the first time that the prime minister was forced to publicly contradict one of his ministers. A few weeks earlier, attempts by provincial assemblies to dismiss governors had triggered tensions within the national government. These efforts by the provincial assemblies, which succeeded in several instances, were taking place in legally suspicious circumstances, with some cases ending up in court. They were denounced by Tshisekedi as attempts to destabilize provincial institutions for purely partisan reasons. But national institutions were also affected by this destabilization when the minister of the interior, a Tshisekedi supporter, decided to reinstate the governor of Kongo Central province, who had previously been deposed by the provincial assembly. This move was strongly opposed by the FCC and the prime minister. In a letter he released to the public, the prime minister denounced the minister of the interior for behavior that “flouts the authority of the prime minister, undermines government unity and cohesion.”

President v. Parliament

Attempts by several provincial assemblies to remove governors (as discussed above) are just one of the manifestations of the tensions that have been brewing for months between President Tshisekedi and the pro-Kabila provincial assemblies and national parliament. Other indications of tension included arrests, sometimes followed by travel bans against high-profile figures close to Kabila.

These tensions peaked in mid-January when Tshisekedi vowed to dissolve parliament if Kabila’s supporters continued to “obstruct [his]action” without further elaboration. The reaction from Kabila supporters was strong, immediate and unequivocal: the president of the National Assembly announced that any attempt to dismiss parliament would trigger the impeachment of the president for “high treason.” Parliament was in recess at the time, and neither the threat or counterthreat was going to materialize before parliament returned for its March session.

When parliament reconvened on March 16, however, the first cases of COVID-19 had been reported a week earlier. In his opening speech, Senate President Thambwe Mwamba decreed its adjournment, declaring that senators can only meet again “when we are sure that by bringing you here, we will not expose you to the coronavirus.” The National Assembly convened a special session to which it invited Dr. Muyembe, the epidemiologist who had previously led the Ebola response, for a hearing on the coronavirus before a plenary session. After this special hearing, the National Assembly in turn adjourned for 18 days.

In the absence of a parliament in session, the executive has taken matters into its own hands. On March 18, President Tshisekedi convened an extraordinary cabinet meeting after which he addressed the nation to announce the first response measures against the coronavirus – including the prohibition of international maritime, air, and land traffic and the appointment of an inter-institutional response committee chaired by Dr. Muyembe. A week later, as the number of cases increased, the president again addressed the nation to announce a public health state of emergency which allowed him to order the temporary closure of schools and places of worship, a ban on gatherings of more than 20 people, a travel ban between Kinshasa (which was then the only city affected) and the rest of the country, and other freedom-restricting measures.

While the state of emergency had been in effect for two weeks, the presidents of the two chambers of Parliament suddenly announced the convening of a joint session (or “Congress”) to discuss the legality of the state of emergency. According to them, the president had violated the constitution by declaring a state of emergency without prior Parliamentary authorization. In an interview on national television, senate president Thambwe Mwamba said that the joint session would debate the advisability of “regularizing” the state of emergency by formally authorizing it retroactively.

This position was problematic on two levels. First, as constitutional lawyers have pointed out, the idea that the president needs prior authorization of parliament to declare a state of emergency was contrary to the plain language of the constitution. The relevant provisions of the constitution make the proclamation of the state of emergency an exclusive prerogative of the president, parliamentary authorization being required only for the extension of the state of emergency. Tambwe Mwamba’s position was contrary to established jurisprudence of the constitutional court which, in 2007, decided that the declaration of the state of emergency is “a power of the President of the Republic” not subject to any authorization of parliament. Second, to call a joint session of parliament was highly problematic even for the authorization to extend the state of emergency, as this is subject to normal parliamentary procedure – i.e. by vote of each of the two Chambers separately

As was to be expected given the climate of suspicion already in place since January, the convening of an extraordinary Congress on such a fragile legal basis was immediately perceived as a smokescreen for a hidden agenda. Tshisekedi supporters suspected an attempt to remove the president – a kind of preemptive strike to prevent the president from dissolving parliament. Indeed, by virtue of the constitution, the vote to dismiss the president takes place in parliament convened in Congress.

The legal issues raised by this incident were cleared up quickly. The constitutional court upheld the proclamation of the state of emergency as being in accordance with the constitution. With the state of emergency due to expire on April 24, the president then petitioned parliament to extend it. Parliament convened exceptionally and, through a separate vote of the two chambers, granted the authorization.

Politically, however, the incident further widened the gap between pro-Tshisekedi and pro-Kabila camps in parliament. The vice-president of the national assembly, a top leader of Tshisekedi’s UDPS party (a member of the CACH coalition), disassociated himself from the presidents of the two chambers of parliament, whom he publicly accused of violating the constitution by convening the congress. In the medium to long term, the attempts to hastily convene the congress could have more worrying consequences for relations between the executive and parliament. Any attempt by parliament to exercise oversight during the state of emergency will now be viewed with suspicion.

This is even more worrying as the president appears to have taken advantage of the state of emergency to act in matters that are normally within the domain of parliament, while that body was in a self-imposed recess. Such was the case when Tshisekedi announced the creation of the Agence de Prévention et de Lutte contre la Corruption (APLC), an anti-corruption agency intended to operate within the presidency and endowed with broad investigation and subpoena powers. As opposition MP Delly Sesanga remarked, the creation of the APLC by presidential decree borders on unconstitutionality; an agency with such broad powers can only be created by act of parliament.

A good amount of the damages the parliament has incurred are self-inflicted wounds which date from before the COVID-19 crisis. The current parliament is the third legislature since the enactment of the 2006 constitution. Just like the two previous legislatures, this parliament has shown extraordinary potential in legislative matters: from the first session, deputies tabled fifteen or so private members bills where no bill had yet come from the government. These bills concerned matters as varied as the fight against corruption, reform of the electoral law and of the electoral commission, reform of citizenship laws, the rights of people living with disabilities, the rights of indigenous peoples, and the status of former presidents.

Unlike in previous legislatures, however, members of parliament have been unable to follow through on their activism as legislators since only six of these bills have found their way on the parliamentary agenda  and none of the bills have been voted on. At least three of these bills concerned the fight against corruption, including a bill to create an anti-corruption agency. After announcing that she would give priority  to this bill in the March 2020 session, the president of the national assembly immediately was forced to adjourn due to the COVID-19 crisis. Two weeks later, an anti-corruption agency was created by presidential decree.

The same dynamic played out for the parliament’s exercise of its oversight powers, which was frustrated for the entire first year of the legislature, mainly due to the lethargy of the leadership of the two chambers, which has at times bordered on deliberate sabotage. 

One of the oversight mechanisms particularly prized by MPs consists in addressing oral questions to ministers through the chamber’s bureau, which obliges the minister to appear in parliament for a hearing on the subject. While a dozen such oral questions were submitted to the bureau during the first session alone, the leadership of the national assembly only scheduled a hearing for one. MPs may also address a written question to a minister, to which he or she must respond in writing. The bureau in this case is a mere courier; it is almost obliged to transmit the written question unless its content is deemed manifestly malicious or frivolous. If the minister’s written response is not convincing or it raises follow-up questions, parliament can call her/him for a dedicated hearing.

Since the Ilunga government was formed, more than 36 written questions have been submitted to the bureau of the national assembly – reflecting an even greater dynamism than during the previous two legislatures. Unlike then, however, the current parliamentary leadership seems determined to systematically block this oversight mechanism. Acting more as a filter than as a courier, it has failed to forward most of the questions to the ministers. In the few cases where it has, it has failed to ensure that the ministers respond in time or to schedule a hearing to debate the question. 

This has been a major source of frustration for MPs, who have accused the bureau of obstructing the exercise of their parliamentary rights. In a letter on May 2 to the president of the national assembly, opposition MP Kasweka Muhindo complained of “blockages and obstacles posed by the bureau of the national assembly with regard to the initiatives of the deputies within the framework of parliamentary control.” Whether this letter played a role or not, the national assembly finally held a hearing on May 6 at which the prime minister and several members of his cabinet were invited to spell out measures taken so far against Covid-19. 

MPs nevertheless deplored the poor quality of the oversight thus restored. For example, the request for an extension of the state of emergency was an ideal opportunity for parliament to question the government on the need for such measures and to quiz members of the executive on any abuses committed during the lockdown. However, the request for an extension of the state of emergency was tabled by a private member’s bill and not by a bill submitted by the executive. As MP Jacques Ndjoli deplored after the vote: “We have just authorized the extension of the state of emergency, but all members of the [national assembly]are unanimous in demanding that from now on the request for an extension be made by a government bill. The government must submit the request and give us the reasons why it needs a 15-day extension. [The government needs to explain to us] why we went from a single case [of COVID-19 contamination]on March 10 to over 800 cases today. Why this explosion? [At the beginning we only] had external contamination cases and today we have cases of internal contamination. What explains this? […] Why must provinces that do not have positive cases [also]undergo the rigor of the state of emergency? We did not have an explanation for all these questions. We understand that our colleague is not a member of the executive. He does not sit on any of the technical commissions which would have otherwise given us the necessary basis for assessing the efficiency of [the COVID-19 related]measure.”

The senate meanwhile was tangled up in a corruption scandal of its own, which temporarily prevented it from exercising proper oversight of the government’s handling of the Covid-19 crisis. After the botched attempt to convene an extraordinary congress, it was revealed that senate president Alexis Tambwe Mwamba had taken advantage of the recess to contract with a controversial construction company for renovations to the senate building and that this construction, which was not provided for in the budget, could have been overcharged. The scandal came to light as the senate set to launch hearings of the prime minister and other ministers on the government’s handling of the coronavirus crisis. As Senator Goya Kitenge noted in a memo to her colleagues, “this violation of the law puts the senate in an uncomfortable position vis-à-vis the government it is called upon to monitor with regard to budget execution.”

The awakening of justice?

At the beginning of February, two important developments took place almost simultaneously. President Tshisekedi appointed new judges to the top of the judicial system, and the government announced an audit of the President’s First 100 Days Emergency Program (“the 100 Day Program”) – a program unveiled in March 2019 and consisting primarily of restoration and construction of public infrastructure (roads, ferries, bridges, schools, hospitals, sewage, and electricity supply). These two developments were to serve as a test of both Tshisekedi’s repeatedly declared desire to fight corruption and the ability of the judiciary to regain its independence after decades of executive interference.

The appointment of senior officials in the judiciary was generally well received by the public. For the main judges’ union, SYNAMAG, the appointments signaled a new era for justice. Anti-corruption campaigners welcomed the appointments and called on the new prosecutors to end impunity in all pending corruption cases. President Tshisekedi told the council of ministers that the appointments were “the starting point for the great reform of our judicial system [meant]to put an end to impunity, injustice, and corruption”.

Prosecutions for corruption in the execution of the 100 Day Program would later provide judges with the opportunity to assert their independence. Scheduled to last three to four months, the 100 Day Program experienced a considerable delay, which fueled speculation of misappropriation of funds intended for its execution. In early January, ODEP (Observatoire de la Dépense Publique, a public expenditure watchdog) published an assessment report which, among other conclusions, pointed to blatant violations of public procurement procedures in the program. In February, the government ordered an audit of the program, following which prosecutors in Kinshasa opened formal inquiries into allegations of embezzlement of public funds allocated to the program. As part of these investigations, prosecutors arrested bankers and executives of public and private construction companies, some of whom were later put under pre-trial detention.

While the state of emergency put a hold on many government projects, prosecutors responsible for investigating allegations of corruption in the 100 Day Program accelerated their pace, turning their interest to even more powerful members of the political and economic elite. The most prominent of these figures is Vital Kamerhe, a former president of the national assembly, presidential candidate in 2011 and leader of the party with which Tshisekedi’s UDPS entered a pre-election political alliance in 2018. As the president’s chief of staff, Kamerhe oversaw the 100 Day Program, a position he used to, according to court papers, demand and/or accept bribes from the companies supplying the work under the program. When he was arrested and placed in pre-trial detention on April 8, Kamerhe made history as the first political figure of his rank to ever be prosecuted for corruption in Congo.

Vital Kamerhe devant les juges. © Capture d'écran YouTube/Marius Muhunga TV
Vital Kamerhe devant les juges. © Capture d’écran YouTube/Marius Muhunga TV

Then followed arrest warrants and, for some, pre-trial detention of prominent personalities such as Baramos Lobota, the director of FONER (National Road Maintenance Fund) and a powerful Kabila ally; Patient Saiba Tambwe, the director of OGEFREM (Office for the management of maritime freight); and Modeste Makabuza, a businessman based in Goma, whose name has appeared in several United Nations reports on arms trafficking and financing of armed groups.

Just a few months ago, the idea that judges could issue arrest warrants against such politically connected figures was simply unthinkable. Equally unthinkable was the idea that a judge could disobey an order from the minister of justice. Yet, this is exactly what the prosecutor of the court of cassation did when he refused to end the proceedings against the director of OGEFREM Patient Saiba Tambwe as requested by the minister of justice. During the same period, the president of the constitutional court opposed the inspection visit that the minister of justice, Tunda ya Kasende, was preparing to carry out in all the courts of Kinshasa. Such a visit, according to the president of the constitutional court and president of the superior council of judges, would be contrary to the independence of judges, all the more since it is not provided for in “any legal provision” and that the minister did not describe “the necessary contours which would guarantee respect for [the]constitutional provision” of the independence of the judiciary.

Most of the developments recalled in this paper occurred or started before the COVID-19 crisis, suggesting that they predate the current health crisis. There is no doubt, however, that the crisis has either given these events the necessary cover to prosper or has served as fuel for these dynamics to take a life of their own.

The state of emergency gives the head of state the opportunity to assert his constitutional status as “guarantor of the proper functioning of the institutions” and thus, by necessity, he emerges as the captain of the executive team. President Tshisekedi nevertheless seems to have taken advantage of the state of emergency to reinforce his existing tendency to chip away at the prime minister’s power.

Although the same dynamic has played out in his relations with parliament, here President Tshisekedi benefited from an important ally: the reluctance of the bureaus of the two chambers to allow MPs to fully play their legislative and oversight roles. Having prematurely adjourned the March session, the parliament stripped itself of its own prerogatives and left a void that the executive happily occupied. Parliament has certainly woken up and started the long overdue task of interrogating the executive over its management of the crisis. Bills that should have been debated for more than a year have now climbed important steps on the legislative ladder. This catching up effort is not helped, however, by the fact that both chambers of parliament are undermined by internal problems of ethics or power struggle. It will take several sessions to measure the depth of the damage and the speed of healing.

In contrast, the justice sector has gained in vitality during the state of emergency. Coincidentally, the appointment of senior magistrates and the proclamation of the state of emergency took place almost at the same time. The various judicial appointments helped the judiciary regain its independence, and the state of emergency became the occasion to exercise it. This regained autonomy of justice is perhaps temporary and fragile. At the moment, however, it is very real, and it is a reminder that despite the scandals and intrigue, the Congolese political system continues to surprise.

Pascal K. Kambale, a Congolese constitutional lawyer and human rights activist, is senior advisor in the Africa Regional Office (AFRO) of the Open Society Foundations and a member of the advisory committee of the CRG and the advisory board of ICREDES (Institut Congolais de Recherche en Développement et Etudes Stratégiques). He writes in his personal capacity.