January 29, 2022

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DRC Independent Electoral Commission Paradigm Shift

On June 4, 2021, the Spokesperson of the parliament in the Democratic Republic of Congo submitted to the plenary the bill of law no 10/13 of July 18, 2010 on the organization and functioning of the IEC as amended and supplemented by Organic Act no 13/012 of April 19, 2013. The Independent Electoral Commission, resulted from findings following the Inter-Congolese Dialogue at Sun City in 2002, and its provisions in Article 154 of the Constitution of  Transition as well as the Comprehensive Inclusive Agreement, along with four other democracy supporting institutions: National Human Rights Observatory, High Authority for the Media, the Truth and Reconciliation Commission and the Commission of Ethics and the Fight against Corruption.

Briefly, the statement on reforms relating to the Lutundula proposal to reform CENI (IEC), was made public during a press conference hosted by the PAJ, the Parliament Law Commission on June 14, 2021. Its General Rapporteur, Professor Daniel Mbau brought clarifications about the essence relating to voting process for CENI reforming purposes. Daniel wanted to clarify that on this occasion the PAJ, Parliament Technical Commission proceeded meticulously and methodically to the review of amendments brought forward and proposed by the Honorable Members. In a good-natured democratic atmosphere and in a context of very enlightened contradiction, the Honorable Members of Parliament, following debates and many proposals for reformulations, addition and deletions, adopted the aforementioned bill, making some for the operability of one of the democracy supporting institutions.

Inadequacies happenstance at the last elections triggered such amendments as regards the CENI reformulation, reorganization and restructuring in order to counter any inclinations of CENI members’ instrumentalization. It should be noted that out of 337 voters, 336 Honorable Members voted YES, only one Member voted NO, and no abstentions were reported at the end of the voting process. Such an overwhelming result means that the bill will have been voted by acclamation, despite the dissent, but in the end, Honorable Members have unanimously agreed to pass this bill. The PAJ Law Commission wished to inform the public that the aforementioned proposal was duly transmitted to the Senate for second reading in order to allow the upper house to vote the same in identical terms as adopted at the lower house level for the same cause.

In his capacity as PAJ Commission Rapporteur, Daniel Mbau added that Articles 10, 12,14,17,21, 21bis, 22,24,24bis, 25 paragraph1, 28,42 and 5 have been initially subject to certain amendments before being intelligently completed, while complying with the spirit of bill’s author, consisting in strengthening the CENI independence, transparency, impartiality and neutrality and enhance the fight against any delaying tactics tending to discredit the values ​​inherent in the CENI existence. It ought to be noted that the Parliament has therefore opened a breach in order to take a giant leap towards new main points, cast in fundamental and important innovations. These innovative reforms revolve around the following readjustments:

  1. It should be noted that the CENI will be subject to a double control: internal and external in accordance with the provisions of the Constitution of February 18, 2006 adopted by referendum and the laws of the Republic in force.

 

  1. The prohibition on CENI members to acquire for any reason whatsoever, either directly or indirectly, goods intended for the CENI or to participate in bidding and tenders relating to the CENI. Still according to the lexicology used by Professor Mbau, this new proposal would ensure the dusting of the hardware relating to the CENI tenders as well as any other related accessory.

 

  1. The protection of CENI members against pressure from third parties, another innovative reform, including against those who nominated them. In the incisions of this Act, it is said expressis verbis, that it is prohibited for the members of a political component who have appointed CENI members to either change them, retain them or maintain them by exerting any pressure.

 

  1. Establishing collective and individual sanction for the forfeiture by CENI members in the event that CENI member intentionally or deceptively violates this Organic Act. This is a major reform in Congolese administrative law that there be opening for material scope of the competence of the Council of State which, henceforth, beyond the fact that it is a jurisdiction of administrative acts, will deal with acts and facts relating to the forfeiture of one or more CENI members.

 

  1. The institution of the resignation sanction for CENI members in the event of non-submission of the report to the Lower House during the opening of March plenary, within 45 working days. Should the CENI refuse to submit this report at the close of electoral operations or at the March plenary, from the date of plenary opening until the expiry of 45 days, CENI members shall immediately face the resignation sanction.

 

  1. On CENI restructuring, a reform relating to the number limitation of members has been inserted therein. In the proposal, the number of CENI members has been increased compared to the previous draft. Now limited to 15, these members are distributed as follows:

a)         6 members from the majority

b)         4 members from the opposition

c)         5 members from civil society

Such extended CENI members for plenaries is an innovative reform which satisfies the prerequisites and the spirit of CENI before these reforms. In the provisions of the CENI before reforms, the number of its members was limited to 13.

On another hand, Constitutionalist and Professor Mbata, in his capacity as Chairman of the Parliament Law Commission, made it clear that the DRC was inspired by the South African model for the creation of its CENI as previously explained; nowhere else, especially in old democracies, has the CENI ever been implemented. This is particularly the case of the USA, France, Belgium and Germany. The CENI remains an African innovation because of the diversity of a multidimensional geopolitics inherent in ethnicities and cultures.

Professor Mbata was disturbed by the intransigence directed at him over the lack of CENI depoliticization; an approach which was the rationale by the Group of 13, but which apparently was not up for debate at the plenary level. Mbata would brandish the Lutundula bill document in which depoliticization is nowhere mentioned, before adding that it is unthinkable that the CENI shall be apolitical. CENI apoliticalism featuring is undermined by its nature and its modes of existence. How would one speak of an apolitical CENI when its composition contains, apart from civil society, 10 members from the majority and the opposition, who are also political (majority and opposition)? Once appointed, CENI members appear before the Parliament (which is political), before the President (political institution) signs the ordinance appointing them. The argument developed by Mbata is justified by the fact that CENI President comes from Religious Denominations (yet another debate because there are only 8 religious denominations that participate in this exercise of appointing the president candidate of the CENI, which causes an uproar among other religious denominations), while the Rapporteur position of the CENI is filled by someone appointed by the opposition.

 

While awaiting the second reading in the Senate, it would be opportune to proceed with the initial stages aimed at appointing CENI hierarchal leading team.