Tuesday, 14 June 2016

The political crisis in the DRC another test case for the AU's preventive diplomacy

The political crisis in the DRC another test case for the AU's preventive diplomacy


15 June 2016



According to the country’s constitution, President Joseph Kabila of the Democratic Republic of the Congo (DRC) should step down when his second and last term expires at the end of 2016. However, a date for the presidential elections, which the constitution says have to be held before the end of 2016, is yet to be set.
The government has not said that it is postponing the elections, but it did indicate at the start of 2016 that updating the voter’s roll would take 18 months. This would put the elections off until at least June 2017. From the opposition’s point of view this is a move by Kabila to extend his rule.
Since last June, Kabila has unsuccessfully tried to convene a ‘national dialogue’ to address a variety of issues, including the elections. Most of the opposition parties and civil society organisations are refusing to participate in this event.
Meanwhile, tensions are rising in the country. Last year the leaders of seven parties formerly allied with Kabila broke ranks with him over the issue of the elections and the confusion over whether or not he intends to stand down. They formed the G7, which, along with other opposition platforms, calls for respect for the constitution.
Constitutional Court ruling strengthens Kabila’s case
Meanwhile, on May 11 2016 the Congolese Constitutional Court ruled that Kabila could stay in power until he was replaced by an elected successor. The court was seized on the matter by parliamentarians from the ruling alliance. The ruling gives Kabila the legal grounds to extend his mandate beyond December 2016, and will no doubt make it harder for the international community to address the election delay in the DRC, even though it neither explains nor justifies delaying the elections.
The international community is also concerned about the regular crackdowns on opposition leaders and civil society activists. Numerous opposition politicians have been harassed and detained, and political gatherings have been prohibited.
Moïse Katumbi, the former governor of Katanga and a former ally of Kabila, is a prominent example. Katumbi announced his intention to run in the presidential election in May. Shortly after this announcement he was charged with employing mercenaries. His court appearances in Lubumbashi have provoked sizeable street demonstrations by his supporters. 
Calls for the AU to get involved
In this context of growing instability, there have been repeated calls for the African Union (AU) to intervene in the situation and implement its tools for preventative action in the DRC.
In the past few months Africa has been rocked by contested elections and political instability due to leaders’ attempts, successful and otherwise, to prolong their mandates. So far, the AU’s early warnings in the region have fallen on deaf ears. Special envoys have had little success in diffusing the situation and AU election observers have rubber-stamped elections marred by violence.
From the opposition's point of view this is a move by Kabila to extend his rule
In Burundi the AU deployed an array of instruments to prevent a full-scale crisis following the decision of incumbent President Pierre Nkurunziza to run for a third term. The AU Commission warned in late 2014 of the likelihood of a crisis breaking out and sent special envoys – first former Organization of African Unity secretary general Edem Kodjo and then Senegalese mediator Ibrahima Fall. In June 2015 the PSC, at its summit of heads of state and government in Johannesburg, decided to send human rights observers and military experts to Burundi. Sanctions were adopted last October against stakeholders who constitute obstacles to peace. However, the AU’s bold approach did not prevent Burundi from organising elections in July 2015.

After Nkurunziza’s re-election for another five-year term the situation continued to deteriorate. The most recent intervention by the PSC to stop the crisis unravelling – sending a military force of 5 000 personnel – was reversed by the heads of state and government, who found it ‘premature’. More recently, a delegation of heads of state decided to double the number of human rights observers and military experts. Despite these efforts, the situation in Burundi remains volatile and marked by violence.
No intervention in the Republic of Congo
In the Republic of Congo, tensions persist after the presidential elections in March. When President Denis Sassou Nguesso organised a referendum in late 2015 to scrap presidential term and age limits in the constitution, the AU Commission chairperson ‘deplored the tensions generated by the differences among the Congolese political stakeholders on the constitutional referendum’.
However, the AU avoided taking a clear position on the referendum. Instead it urged role players ‘to seek, through dialogue, a solution to their differences, based on … particularly the African Charter on Democracy, Elections and Governance’. After the constitutional changes were made, the government decided to convene early elections in March instead of July.
While the opposition denounced the hasty organisation of the poll, the AU sent 30 election observers. Their ability to perform their task was seriously constrained by the government’s decision to cut all telecommunications during the election period. The AU urged the government to re-establish telecommunications two days after the polls, when it had already published preliminary results pronouncing Sassou Nguesso the winner. Since then the AU has not officially reacted to the military operations launched by the government in the Pool region, an opposition stronghold. According to the government, these operations, which included bombardments by military helicopters, were aimed at the headquarters of opposition politician Pasteur Ntumi. It accuses Ntumi of attacking Brazzaville on 4 April, but very little information has filtered out about these attacks.
AU declares Chad elections free and fair
In Chad, where Idriss Deby, the current AU chair, was re-elected in April 2016 amid tensions between civil society and the government, the commission did not act either. The AU Commission also sent electoral observers, chaired by former Malian president Dioncounda Traoré. While the opposition rejected the results, the AU mission concluded that the elections were held in fair and free conditions, despite some flaws.
The AU's early warnings in the region have fallen on deaf ears
A possible explanation of this lack of results is the AU’s reluctance to openly engage governments that organise flawed electoral processes. The opposition, civil society and observers in both states had criticised the way the elections had been organised by the National Independent Electoral Commission (CENI).
Despite having declared the elections free and fair, Traoré stated afterwards that ‘the tripartite composition of the CENI creates an opportunity for political interference and pressure due to its political rather than technical composition and because of a potential imbalance between its various components’.
In the Republic of Congo the composition of the electoral commission was also criticised, since it consisted mainly of members of the ruling party. In reaction, the opposition created its own electoral commission.
Both these situations contravene the African Charter on Democracy, Elections and Governance, which calls upon governments ‘to establish and strengthen independent and impartial national electoral bodies responsible for the management of elections’. This issue was not addressed ahead of the elections by the AU due to its reluctance to infringe upon the sovereignty of the concerned states, which are currently members of the PSC.
The question can thus be asked whether the AU has learnt any lessons from its previous experiences in this part of the continent. 
Kodjo mediation merely déjà vu?
At first glance, the AU’s mediation in the DRC is no different from the way it has dealt with similar situations in Burundi and elsewhere in the region. The AU Commission chairperson appointed Kodjo, who is also a member of the AU Panel of the Wise, as the facilitator of the national dialogue after it received a request from the Congolese government to do so. The communiqué appointing the facilitator says it ‘aims at assisting in convening an all-inclusive dialogue in order to address issues related to the upcoming elections in that country’.
However, Kodjo has not succeeded in establishing the independence and neutrality of the process that he is supposed to shepherd. Instead he has stepped into a process initiated by the Congolese government that does not have the buy-in of the opposition, which views it as a waste of time with the ultimate objective to extend Kabila’s stay in power.
Kodjo has not succeeded in establishing the independence and neutrality of the process
It was only after the UN Security Council voted for Resolution 2277, calling for ‘peaceful, credible, inclusive, transparent and timely elections in the DRC, particularly presidential and legislative elections by November 2016, in accordance with the Constitution, while respecting the African Charter on Democracy, Elections and Governance’, that the AU mediator called for respect for the constitution and constitutional deadlines.
So, whereas the Kodjo mediation has an immediate goal, its ultimate objective is not clear. Currently, the main obstacle to a national dialogue is the fact that the opposition does not want to participate in a dialogue that it sees as being stage-managed by the government and mediated by a figure it feels lacks neutrality.
However, the question is whether the AU can be neutral when its main instrument – the African Charter on Democracy, Elections and Governance – is clearly being violated. The enduring conflict between the AU’s stated goal of promoting democracy and its reluctance to oppose incumbent governments certainly is an obstacle to successful mediation. 
AU’s efforts stifled by a lack of flexibility
There are two potential explanations for the AU’s seemingly lacklustre efforts in the DRC. The first one is its inflexibility. The chairperson’s appointment of Kodjo emanates from her discretionary powers in the area of peace and security, according to Article 10 of the PSC Protocol. However, since the PSC member states are its main decision makers, the lack of an explicit endorsement of the mediator limits its legitimacy. The AU Commission chairperson wishes to avoid an outbreak of violence but is not specific about how to achieve this. Interestingly, the first communiqué by the chairperson on the DRC ‘reaffirmed the determination of the African Union to support the Democratic Republic of the Congo on the path of political dialogue, in accordance with AU constitutive texts’. It did not mention either the African Charter on Democracy, Elections and Governance or the respect for constitutional term limits that is at the root of the tension in the DRC.
This lack of a comprehensive framework creates a void that makes it difficult for the mediator to operate successfully. The fact that Kodjo continues to insist on the national dialogue illustrates his limited flexibility. Moreover, the fact that it was the Congolese government that had asked for an AU mediator also constitutes ade facto limitation on his actions in the DRC.
Regional mechanisms are silent
Another explanation for the AU’s lack of action is the role played by the regional mechanisms in solving the crisis. The DRC is a member of both the Southern African Development Community (SADC) and the International Conference on the Great Lakes Region (ICGLR), but neither has addressed the current political situation. This is a critical difference between the AU’s efforts in Burundi and Burkina Faso and its current involvement in the DRC.
Avoiding interference often means safeguarding the incumbent
In Burundi, which is a member of both the Economic Community of Central African States (ECCAS) and the East African Community (EAC), the EAC plays an important role and is leading mediation efforts. However, so far it has not been successful in ending the crisis in Burundi.
In Burkina Faso, the Economic Community of West African States (ECOWAS) also took the lead in solving the political crises at the end of 2014 and in September 2015. The decisions taken at the regional level steered the PSC’s position on these conflicts. In the DRC, neither SADC nor the ICGLR has taken any official position and is not expected to do so. 
Most of the DRC’s neighbouring states are ruled by presidents who have amended their constitutions to extend their stay in power, so a solution is not expected to come from them. The inertia of these regional mechanisms seems inevitable. Moreover, the past contentious relationship between the DRC and its neighbours, marked by their armed involvement on Congolese territory, is another factor hindering a regional solution to the current crisis.
Trading democratic values for the sake of peace accommodates sitting presidents 
The situation in the DRC illustrates the ambiguity of the AU’s mediation efforts. Does the AU want to implement its legal provisions on democracy and good governance, avoiding the violent deterioration of a crisis situation, or will it side with sovereignty even if domestic legal instruments have been manipulated? Avoiding interference often means safeguarding the incumbent. 
Sending a mediator looks like an attempt by the AU to avoid taking an explicit position in favour of continental values of democracy and good governance. Looking at its efforts – or the lack thereof – in Burundi, the Republic of Congo and currently in the DRC, a  pattern has emerged of its avoiding confrontation with incumbent leaders, despite the fact that this strategy has proven to be largely unsuccessful.  
To this day, the apparent preference of the heads of state of the PSC for negotiations and dialogue behind closed doors does not achieve any substantial result for the promotion of democracy and good governance on the continent. On the contrary, the organisation’s timid approach, and member states’ apparent willingness to sacrifice the AU's values for shortsighted and short-term continuity, have instead contributed to maintaining the status quo. From this perspective, the developments in the Republic of Congo and similar situations in Central Africa call for a clarification of the AU’s mediation efforts. 
While the AU embraces democratic values in most of its legal provisions, their implementation is still limited. Especially in cases where there is not yet any open crisis, the AU is often suspected of interfering in the internal affairs of countries. From a conflict prevention perspective, various observers remark that it remains difficult for the PSC to proactively address governance issues before crises erupt. While the AU Commission may be bold in warning about potential crises and urging for early action, member states – the ultimate decision makers – tend to curb these efforts for the sake of sovereignty.
This state of affairs clearly affects the AU’s mediation in political crises, which is based on a compromise between the normative ambitions of the organisation and the inertia resulting from the lack of consensus among PSC member states on effectively addressing governance flaws in order to avert full-blown crises.
By ISS Africa