Changing Congo’s Constitution

It was to be expected: President Kabila had broached the subject of changing the constitution. Of course, this is cause for alarm: Mobutu did the same when he first came to power in 1965, progressively getting rid of multiparty democracy and the checks and balances of a the legislature and judiciary.

This is far from Mobutism, at least for now. We need to update the constitution, as the one approved in 2005 said that 26 new provinces were supposed to be created by December 2009, and 40% of national revenues were supposed to be managed by these provinces. This hasn’t happened, so there needed to be an update.

The commission, however, charged by the president to propose a constitutional revision has gone quite a bit further. It submitted its conclusions to the government on Monday, prompting Kinshasa’s press to ask: “Is our constitution in danger?” Here are some of the things they want to change:

  • The creation of 26 new provinces
  • The decentralization of 40% of state revenues to the provinces
  • The composition of the National Council of Magistrates, the supervisory authority of judges and prosecutors
  • The proportional representation electoral system

It isn’t clear how exactly they want to change these clauses, as far as I can tell. The biggest controversy is the suggestion that the president should preside of the National Council of Magistrates, which would go against Article 220 of the current constitution, which explicitly prohibits any constitutional changes that could undermine the independence of the judiciary. Of course, Kabila will argue that the same council in France is also presided over by the president.

The other controversy is regarding term limits: The commission has delicately suggested that there be “a deep reflection” on the presidential mandate and term limits, which are currently limited to two five year terms. A constitutional change in this sense is also prohibited by Article 220 of the current constitution.

We should remember that the Planning Minister Olivier Kamitatu recently suggested in an interview with Jeune Afrique that it would be wise to get rid of the prime minister, the president needed more power to rule the country efficiently.

I’m not a constitutional scholar, but it always seemed a bit bizarre to insist in a constitution that certain aspects of the constitution couldn’t be changed. A constituent assembly could change anything they want about a constitution, after all they created the current one. This is what certain legal scholars like Evariste Boshab, the president of the national assembly, argue. But would they need to convene a special assembly and submit changes to a referendum, or could they just change it according to the dispositions of the current constitution?

The clauses regarding constitutional changes are very weak: Changes (excepting those prohibited by Article 220, I guess) can be pushed through with a simple 3/5 majority, not a very difficult feat for Kabila’s AMP coalition.