Democratic Re Public of the Congo

Democratic Re public of the Congo 1 Introduction The Democratic Republic of the Congo (DRC) is the second-largest country in Africa, with a population of approximately 84 million people.1 The DRC gained independence from Belgium in 1960. Its post-independence history is bloody: the first post-independence leader, Patrice Lumumba, was assassinated in 1961. In 1965, military officer Mobutu Sese Seko assumed power after a period of civil war. Mobutu ruled his one-party state (which he renamed Zaire) until 1996, when he was ousted by an armed coalition led by Laurent Kabila. However, the country remained dangerously unstable and effectively in a state of civil war. In 2001, Laurent Kabila was assassinated by his bodyguard and was succeeded by his son, Joseph Kabila. Although Joseph Kabila is credited with introducing a number of important reforms, most notably a new constitution, his democratic credentials remained extremely poor. The last election which he won (in 2011) is disputed and lacked credibility due to widespread irregularities. President Kabila’s second five-year term of office ended in December 2016, but the DRC failed to hold elections and he ruled without an electoral mandate, albeit with the backing of the Constitutional Court. In May 2016, the Constitutional Court, in a heavily crit- icised judgment, interpreted section 70 of the constitution, which provides that the president continues in office until the assumption of office of his successor, as entitling President Kabila to remain in office without an election having taken place. Critics argue that the Constitutional Court should have found section 75 of the constitution applicable — this provides for the Head of the Senate to assume office temporarily in the case of a presidential vacancy.2 In August 2018, President Kabila announced he would not be running for a third term and the ruling party chose Emmanuel Shadari, seen as a Kabila loyalist,3 as its candidate for the presidential elections. The presidential elections were held on 30 December 2018.4 The outcome of the election was extremely controversial. The Electoral Commission and the Constitutional Court certified that Felix Tshisekedi, an opposition figure, won the election. However, powerful institutions, such as the Catholic Church, disputed this, and it, and the international press, reported that another opposition leader, Martin Fayulu, had, in fact, won by a landslide as evi- denced by leaked election data.5 At the time, the African Union called for the DRC to delay announcing the election results due to serious discrepancies between the provisional results announced by the Electoral Commission and the actual ballots cast.6 This was ignored and, on 24 January 2019, Mr Tshisekedi (apparently with former-President Kabila’s backing) was sworn in as the country’s new president.7 Mr Tshisekedi’s election has since been accepted by the European Union and the United States of America. The AU also backtracked on its objections to the election results as it elected Mr Tshisekedi the second vice-president of the AU on 16 February 2019.8 The eastern part of the DRC remains in a state of armed conflict, and most of the population lives in dire poverty despite the country having an abundance of This chapter is also available in French as a downloadable pdf file at www.kas.de/MediaLawAfrica. 182 Democratic Republic of the Congo natural resources.9 At the time of writing, more than 13 million Congolese need humanitarian aid and more than 4.5 million are displaced — the highest number for the DRC in more than 20 years.10 Nevertheless, the twenty-first century has, in a number of respects, heralded a new era for the media in the DRC. Since the fall of Mobutu, independent newspapers and broadcasters — both radio and television — have flourished. There have also been significant changes in the regulation of the broadcast media, particularly through the establishment of the High Council for Broadcasting and Communications, a constitutionally recognised body. However, the DRC continues to be a country that clearly does not foster freedom of the press and the situation has deteriorated since President Kabila’s second term of office came to an end in December 2016.11 A number of laws limit the ability of the press to inform the public about matters of the day. All too often journalists are arrested and detained, and independent media houses are often raided and banned. In the case of broadcasters, many have had their broadcasting distribution signals suspended without notice.12 The DRC features regularly on international lists of poor media environments, and there is little doubt that the country is, sadly, not in line with international standards for democratic media regulation. Internet and social media shut downs are frequent13 even though internet penetration is extremely low at approximately 6%.14 In this chapter, working journalists and other media practitioners will be introduced to the legal environment governing media operations in the DRC. The chapter is divided into four sections: ` Media and the constitution ` Media-related legislation ` Media-related regulations ` Media self-regulation ` Media-related case law This chapter aims to equip the reader with an understanding of the main laws governing the media in Botswana. Critical weaknesses and deficiencies in these laws will also be identified. The hope is to encourage media law reform in Botswana, to enable the media to fulfil its role of providing the public with relevant news and information better, and to serve as a vehicle for government-citizen debate and discussion. 183 Media Law Handbook for Southern Africa – Volume 1 2 The media and the constitution In this section, you will learn: Z the definition of a constitution Z what is meant by constitutional supremacy Z how a limitations clause operates Z which constitutional provisions protect the media Z which constitutional provisions might require caution from the media or might conflict with media interests Z what key institutions relevant to the media are established under the DRC Constitution Z how rights are enforced under the constitution Z what is meant by the ‘three branches of government’ and ‘separation of powers’ Z whether there are any clear weaknesses in the DRC Constitution that ought to be strengthened to protect the media 2.1 Definition of a constitution A constitution is a set of rules that are foundational to the country, institution or organisation to which they relate. For example, you can have a constitution for a soccer club or a professional association, such as a press council. Constitutions such as these set out the rules by which members of the organisation agree to operate. Constitutions can also govern much larger entities, indeed, entire nations. The current Constitution of the DRC was adopted after a national referendum held in 2005. It came into force on 18 February 2006 and has been amended since then. The constitution contains the underlying principles and values of the DRC. A key constitutional provision in this regard is the introductory section entitled ‘Description of rationales’. This section sets out a number of essential principles of 184 Democratic Republic of the Congo the DRC Constitution. In brief, these are: ` State and sovereignty: This principle sets out that the DRC is divided into the capital and 25 provinces, with juristic personality and powers. However, it is important to note that, in practice, the DRC still operates with 11 provinces and has yet to implement these provincial constitutional provisions. This principle also reaffirms the democratic principle that all governmental authority emanates from the Congolese people. ` Human rights, fundamental freedoms and duties of the citizen and the state: This principle reaffirms the DRC’s commitment to internationally accepted human rights and fundamental freedoms. Note that gender equality is specifically mentioned. ` Organisation of governmental authority: This principle lists the new institutions of the DRC, namely: the president, parliament, Cabinet and the courts. The objectives of all governmental institutions are to: ensure harmonious func- tioning of the state; avoid conflicts; institutionalise the rule of law; counter any tendency towards dictatorship; guarantee good governance; combat impu- nity; and preserve the principle of democratic succession. 2.2 Definition of constitutional supremacy Constitutional supremacy means that the constitution takes precedence over all other law in a particular country, for example, legislation or case law. It is important to ensure that a constitution has legal supremacy: if a government passed a law that violated the constitution — was not in accordance with or conflicted with a constitutional provision — such law could be challenged in court and could be overturned on the grounds that it is ‘unconstitutional’. The constitution of the DRC does not explicitly refer to constitutional supremacy. In addition, the constitution is contradictory as to whether or not constitutional supremacy is in fact recognised. For example, section 221 stipulates that: ‘Provided that they are not contrary to the present constitution, legislative and regulatory texts currently in force, remain valid until abolition or amendment.’ This demon- strates an intention towards constitutional supremacy. On the other hand, almost every fundamental right and freedom contained in the DRC Constitution is subject to an internal limitation, which essentially provides that the right is subject to ordinary legislation. Clearly, such provisions (and there are many in the DRC Constitution) undermine the notion of constitutional supremacy. 2.3 Definition of a limitations clause It is clear that rights are not absolute as society would not be able to function. For example, if the right to freedom of movement were absolute, society would not be able to imprison convicted criminals. Similarly, if the right to freedom of expression were absolute, the state would not be able to protect its citizens from hate speech 185 Media Law Handbook for Southern Africa – Volume 1 or false defamatory statements made with reckless disregard for the truth.

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