DR Congo - Government

It is hard to know where to start in the litany of Congolese governmental dysfunction. The Congolese government hardly delivers governance and public services, not even basic safety. Its governance cannot be conceptualized as policymaking. The DRC is ranked as the second most failed country in the world (after Somalia) in the 2012 Failed States Index of Foreign Policy.

Governance failures are at the heart of the challenges facing the DRC today. The inability or unwillingness of the government to carry out essential functions, like administering justice, guaranteeing public security, and providing healthcare and education, seriously undermines legitimacy. If the government were to provide basic services, then the population might feel less frustrated over the personal enrichment of office holders and the limitation of democratic freedoms. Instead, frustration over the lack of accountability and corruption of government personnel is exacerbated by their inability to carry out even the most limited functions of government.

The core challenge to democratic governance in the DRC is that a decline in checks and balances and public accountability and the failure to deliver public services have led to a breakdown in the social contract between the public and the state. Coming out of the 2006 transition, much of the population was optimistic that the Congolese state would become both more accountable and more competent. Yet a growing concentration of executive power; a decline in respect for civil liberties; a continuing expansion of corruption; and the failure of the government to provide security, justice, healthcare, education, and physical infrastructure such as roads, water, and power have seriously undermined the legitimacy of the state.

The D.R.C. has had numerous constitutions, constitutional amendments, and transitional constitutions since independence. When Laurent Kabila came to power in May 1997, he abolished the existing constitution. In October 1997, President Kabila appointed a Constitutional Commission to draft a new constitution by March 1998. The Commission drafted a constitution, which was referred to a Constituent Assembly to review and submit to a national referendum for ratification. Work on reviewing the draft constitution was held in abeyance when the conflict between the rebel forces broke out in August 1998. No progress had been made on reviewing the constitution by the time Laurent Kabila was assassinated in January 2001.

Congo’s Constitution was drafted by a broadly based constitutional commission during the transitional period that began in 2003. The new Constitution, which was adopted by referendum in December 2005 with 84.31% voting to approve and came into effect in February 2006, outlined substantial institutional changes.

When it was designed during the transition period and put into effect in 2006, the Congolese Constitution sought to provide checks and balances that would prevent the type of excessive concentration of power which had plagued the country under Mobutu. The Constitution set up a semi-presidential system with a strong prime minister accountable to Parliament, an independent judiciary, quasi-federalism with extensive decentralization, and safeguards against changing some provisions such as the number of presidential terms or the division of powers between the different levels of government.

Extensive executive, legislative, and military powers are vested in the president. The president is head of a cabinet of ministers. In consultation with the Supreme Judicial Council (CSM), the president has the power to dismiss and appoint judges. The judiciary is only nominally independent. The legislature does not have the power to overturn the government through a vote of no confidence.

Like the president, National Assembly deputies serve 5-year terms. Unlike the president, they are not term-limited. National Assembly winners in multiple-seat districts (approximately two-thirds of the total districts) are determined based on a complex formula involving the percentages of overall votes cast for a given party and proportional representation using open party lists.

The institutions of the judicial branch have never fully matured, and the judiciary does not have an independent budget. The judiciary also remains a hybrid between its pre-transition structure and the organization envisioned in the Constitution. The High Council of Magistrates (CSM) was not created until 2008, while the Court of Cassation (an appeals court) and the Constitutional Court have never been established. At a most basic level, the judiciary is simply physically absent from many people’s lives. Indeed, a large number of courts and tribunals exist only on paper but have not been built, staffed, or maintained over the years.

The Ministry of Justice estimates the total needs of the country at about 8,000 magistrates (judges and prosecutors). The number of magistrates currently appointed is about 4,000, the majority of whom were recruited in the last few years and are thus at very junior levels. There is little specific training for magistrates beyond the training of lawyers (a five-year undergraduate degree in the DRC). Case backlog due to overburdened judges and clerks is a serious issue; penal cases, where defendants are delivered from jail by the police service, might proceed faster; while civil cases can languish for years.

A new electoral commission, the CENI, was established on February 26, 2011, with the seven CENI commissioners chosen by Parliament to represent the majority (four) and opposition (three) blocs rather than politically independent commissioners chosen with consultation or representation of civil society, as had been the case with the previous electoral commission.

The provincial assemblies are a new level of government mandated by the DRC's new constitution adopted in a December 2005 referendum. They are responsible for day-to-day provincial administration in areas such as development, commerce, and public debt. The provincial assemblies, once seated, select members of the national Senate as well as provincial governors and vice governors.

Decentralization as laid out in the Constitution would represent a major shift in the political system that could bring greater access and accountability, but the process remains stalled. For example, the change from 11 to 26 provinces in the Constitution had not been implemented by 2012, and the boundaries of local government units remained to be determined. This provision was suspended in the 2011 revision of the Constitution.

Despite the Constitution and a formal set of rules that has all the trappings of a functioning democracy, the Congolese political system does not operate under the rule of law. This deficit in the rule of law exists because the legal system is mired in a degree of uncertainty, fluidity, and confusion that largely undermines the power of the law. Fundamentally, a wide disconnect exists between laws and reality, so much so that the legal narrative often appears fictional.

Political authorities conceive of laws as tools of power but not as constraints on their behavior; they see the rights the law confers to them significantly more than the obligations it imparts upon them. There is also a wide gap or disconnect between the text of laws and their application: passing a law is far from a guarantee that its provisions will ever be implemented. The weakness of the law contributes to making informal practices—including corruption—as important as the formal legal system in the country’s political and administrative life.

While DRC rulers are particularly effective at wielding power in their relations with other social and political actors, they are largely ineffective at providing governance and delivering even the most basic services to their population. The DRC is ranked as the second most failed country in the world. The Congolese government hardly delivers governance and public services, not even basic safety. Its governance cannot be conceptualized as policymaking. The lack of means is a serious impediment to effective governance in Congo.

The regime practices governance by asphyxiation, starving government institutions of the revenues they need for even basic activities. The inability or unwillingness of the government to carry out essential functions, like administering justice, guaranteeing public security, and providing healthcare and education, seriously undermines legitimacy, so that governance failures are at the heart of the challenges facing the DRC today, including the insecurity that grips large parts of the country.