32

II. ANALYSIS OF THE CNS’S CONSTITUTION THROUGH LEFORT’S THEORY

2.1. Historical context of the CNS

The CNS is not an isolated event of the history of the D.R.Congo. For better appreciation, it is important to situate it in the logic of resistance for democracy, which punctuates the political history of Congo since its independence in 1960.

In their declaration at the CNS on 30 May 1992, the Catholic Bishops of Zaire, underlining the origin of Zairian crisis, go over the history in these words:

“Our crisis was neither an unforeseeable occurrence nor a momentary effect of a temporary error. It is part of our history. From the origins of our country, (...) the integral happiness of Zairians has in fact never been the motivation nor the principal objective of the creation of the Etat Indépendant du Congo, of its transformation into Belgian colony, nor even of the hasty setting up of its independence. The search of selfish interests by nationals as well as by foreigners was the principal cause of the rebellions and the secessions that followed immediately the independence.. In the same way, it would be too simple to believe that the military coup of 1965 was only justified by the altruism and the spiritual and material wellbeing of our people”18.

Indeed, it was on 30 June 1960 that Congo reached independence under the name of the “Republic of Congo”, after the Round Table of Brussels, in February 1960. Within the first hours of independence, rebellions and secessions were organized as a sign of reaction against “the politicians who had betrayed the people” (Nzongola-Ntalaja, 1997). An unstable leadership characterized these first five years of the Republic until the seizure of power by a military coup on 24 November 1965, by the Lieutenant-Colonel Joseph-Désiré Mobutu, then Commander in chief of the army.

In order to restore order and stability, the new regime set up as its priority the task of reconstruction and political consolidation. To create new bases of legitimacy, in particular under a one party regime,

18 Declaration of the Zairian Bishop Conference at the CNS, 30 May 1992. 33 became the priority of President Mobutu. Thus, between 1965 and 1967, Mobutu’s State endeavored to reinforce its legitimacy by gradually dismantling the institutions of the First Republic, and, at the same time, by increasing the centralization of the control of power around the president. In October 1966, the function of Prime Minister was removed. Although the Parliament continued to meet occasionally, its prerogatives were appreciably reduced, with the executory decisions being generally henceforth taken by presidential ‘ordinances-laws’. All the political parties were dissolved and political activities were prohibited. Mobutu held from now on the quasi-monopoly of the executive power, and controlled both legislative and judiciary powers.

This period is basically marked by the liquidation of the political opposition, either by incorporating it into the new regime, or by repressing it with a fatal violence. Thus on 30 May 1966, four former ministers of the First Republic were accused of plotting against the State, judged in a parody of a trial, and publicly hanged in Kinshasa.

2.1.1. Towards a quest of legitimacy

To consolidate his power on a constitutional basis, Mobutu secured the voting in of new constitution on 24 June 1967. This constitution gave increased authority to the central government and to the president, who became head of the State, of the Police Force, the Army, and in charge of Foreign Affairs. The president was empowered to dismiss ministers and members of cabinet, and fixed their attributions. The ministers were in charge of the execution of president’s decrees and programs. The president approved (or dismissed) the governors of provinces, and all the judges, including those of the Supreme Court.

A single Assembly, the National Assembly, replaced the bicameral Parliament. The president had the authority to legislate on provisions not envisaged by the laws, but within the constitution. Under certain conditions, the president could control by presidential ordinances, which then prevailed over the laws.

But the most significant change of the Mobutu regime was the creation of the Mouvement Populaire de la Révolution (Popular Movement of the Revolution), MPR, on 17 April 1967, marking the emergence of a “politically organized nation” around a leader. The State became from now the emanation, the expression, of the party. In October 1967, responsibilities for party and State administration were 34 shared in a single structure, ensuring the influence of the party at all the levels of power, including in the provinces, the trade unions, youth movements and students organizations. The party was thus the exclusive and the legitimate instrument of the life of the country. Consequently, any difference between political and social organization was eliminated (Claude LEFORT)19.

To translate the concept of a “politically organized nation” into reality implied an expansion of the control of the State over civil society. That started with the incorporation of the youth and workers into organizations controlled by the party-State. In July 1967, the political Office of the MPR announced the creation of the Jeunesse du Mouvement Populaire de la Révolution (Youth of the Popular Movement of the Revolution), JMPR; in August 1967, this launched the formation of the Union Nationale des Travailleurs Zairois (National Union of the Zairian Workers), UNTZA, which gathered three preexistent trade unions in one organization. The goal was to transform the role of the trade unions from a “force of confrontation” into a “body of support to governmental policy”, becoming, thus, a “place of communication between the popular classes and the State” (KADIMA, 1996).

In reality, the regime tried through these operations to put under its control all the sectors likely to see emerging an opposition to the regime. In addition to the trade-union forces and the students, the regime continued to control other key social sectors. Associations of women and the press were put under party control. Under the pretext of the threat of tribalism, Mobutu prohibited a number of cultural associations, such as the Association de Lulua Frères (Association of Lulua Brothers), founded in 1953 in Kasai in reaction to the influence in the area of the rival ethnic group of Lubas; and the Liboke lya Bangala (Package of Bangalas), an association that was formed in the 1950s to represent the interests of the Lingala speakers in the large cities.

With the aim of neutralizing any source of uncontrolled power, significant administrative reforms took place between 1967 and 1973. As a result, the influence of the central power on the provinces was increased. The reform of 1967 brought about the abolition of provincial governments, replacing them

19 Moreover, the slogan in Lingala (the Capital city’s language), “olinga olinga te, ozali membre ya MPR”, means “whether you want it or not, you are member of the MPR”. Indeed, “the MPR is the politically organized Zairian nation. Its doctrine is Mobutism. Every Zairian is a member of the MPR” (quoted by Olivier LANOTTE, 2003: 175). “The MPR was considered, according to a declaration of an official of the regime, like a church, and its founder, the Messiah”.

35 with public servants controlled by Kinshasa. The principle of centralization was then extended to the districts and the territories, with public servants totally reliant on Kinshasa. The sole administrative entities, which did not fall under the central government, were the traditional authorities (chefferies), and the villages.

Table 0.1.: administrative structure under the Second Republic

Central government

Provincial/regional governments

Districts/Sub-Regions

Territories/Zones

Communities/Sectors

Chefferies

Villages

With the reform of June 1973, an additional stage was reached in the increase of centralization. The objective was to carry out a complete fusion between the administrative and political structures by making each administrative leader the head of the corresponding section of the party. As a consequence, the reform seriously blocked the power of the traditional authorities at the local level. This authority was allocated only to persons put in charge by Kinshasa and controlled by official channels. Consequently, the process of centralization had formally eradicated any form of preexistent local autonomy. Basically, the Mobutu regime was built on the doctrinal foundation of its party, the MPR, which was contained in the “Manifesto of N’sele”, from the name of the countryside residence of Mobutu at N’sele, (six kilometers from Kinshasa) published in May 1967. Nationalism, Revolution and Authenticity were identified there as the major themes of Mobutism. Nationalism implied the installation of an economic policy of independence. The Revolution, understood primarily as a national revolution, 36 was at the same time a rejection of Capitalism and Communism. “Neither of the right, nor of the left” was how the regime characterized itself. Authenticity had an important place in the doctrine of the party.

The concept was derived from the doctrine of the MPR, and entailed “an authentic Zairian nationalism and a condemnation of regionalism and tribalism". Mobutu himself advanced this definition when speaking about authenticity: “To be conscious of one’s personality and one’s cultural values".

To show the way, the name of the country was changed to the Republic of Zaire in October 1971 (the name Zaire seems to come from a Portuguese deformation of ‘Nzadi’ in ‘Nzere’, a Kikongo expression to indicate the Congo River); the armed forces became Forces Armées Zairoises (Zairian Armed Forces), FAZ. General Joseph-Désiré Mobutu became Mobutu Sese Seko and obliged all citizens to adopt African names to replace Christian names (received from Catholic and Protestant Missionaries). Many places were renamed too.

Table 0.2.: Change of cities names

Leopoldville Kinshasa Stanleyville Kisangani Elisabethville Lubumbashi Jadotville Likasi Albertville Kalemi

The principle of authenticity gave to Mobutism its principal philosophical originality. It did not imply the rejection of modernity, “authenticity was to be an effort to reconcile the expectations of Zairian traditions with the requirements of modernity". In reality, to many experienced observers, the use of authenticity by Mobutu was principally a means to establish his authority. This appears in a declaration by Mobutu himself: “... in our African traditions, there is never place for several leaders... This is why us, Zairians, let us conform to the traditions of the continent, and join the energy of the citizens of our country under the banner of only one national party”. This led to the extreme centralization of power in an individual, Mobutu himself who had reconfigured, both symbolically and structurally, the articulation of power.

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That is why Denis KADIMA can argue, “the Second Republic was characterized by its highly repressive state apparatus, nepotism, clientism, corruption and embezzlement at the expense of the ordinary citizen. To free themselves, the people had to start a new and longer battle: the struggle for democracy” (D. KADIMA, 1996: 139, emphasis added).

2.2.2. The battle for democracy

From 1969 to 1980, internal opposition to Mobutu’s regime came mostly from students, the Roman Catholic Church, and to a lesser extent, the labour movement (KADIMA, 1996: 140). Some members of the Zairian parliament undertook the first-non-violent internal opposition in 1980.

I would like, in the following pages, to show the role, respectively, of students, the Church and the political opposition, in this fight for democracy.

2.2.2.1. Student resistance

From 1960 to 1965, students demonstrated under the banner of the Union Générale des Etudiants Congolais (General Union of Congolese Students), UGEC, which was replaced with the JMPR during Mobutu’s regime. In 1969, students at the Université de Lovanium, today Université de Kinshasa, demonstrated against the regime, demanding the improvement of their academic and social conditions. The regime brutally repressed the demonstrations, killing more than 60 students (KADIMA, 1996: 141). At the commemoration of the death of their colleagues, in 1971, students demonstrated again. As a result, the government punished the Lovanium students and those of the Université Officielle du Congo, today Université de Lubumbashi, who had expressed solidarity with their comrades from Lovanium, by enrolling them in the army (KADIMA, 1996: 141).

In 1979, strikes were organized in all the universities and the majority of the tertiary institutions throughout the country. Both students and professors demanded the improvement of their social conditions and political change, involving the creation of a space for political competition.

As these political demands seemed to be an intolerable defiance, the government closed almost all the educational institutions involved in the strikes for an entire year (KADIMA, 1996: 142). By the 1980’s, 38 the Zairian State was in collapse. “The social condition had become explosive” (Isidore NDAYWEL è NZIEM, 1998: 749).

Concerned to engage in an active reflection on the deep roots of the crisis, intellectual circles challenged the regime. In November 1985, the Association des Moralistes Zairois (Association of Zairian Moralists), AMOZA, today AMOCO, organized its second conference on the "moral crisis in economic life in Zaire". In March 1987, the academics of the University of Kinshasa deliberated in a national conference on the topic of the "crisis of the Zairian economy and its search for new bases for national development". Major analyses and well founded criticisms emerged from these conferences, where the major concern was to describe the nature of the Zairian crisis, its major causes, as well as the possibilities of resolving it. Unfortunately, these ‘interpellations’ and questions leveled at the regime worried the holders of power, who did not hesitate "to question the relevance of the analyses which had been made" (NDAYWEL, 1998: 750).

2.2.2.2. The battle of the Roman Catholic Church

The Bishops Conference of the Roman Catholic Church played a significant role in the struggle against the Mobutu regime. The resistance to the nationalization of the universities of Kinshasa, led by the Catholic Church, and of Kisangani, led by the Protestant Church, resulted in Mobutu removing Christian names and installing sections of the Youth of the MPR in all Seminaries; this quickly caused serious tensions with the Roman Catholic Church, especially his leader, Cardinal Joseph MALULA.

M. Schatzberg notes, “Cardinal Malula protested this decision and instructed his bishops to ignore it. In retaliation, the regime seized the Cardinal’s residence in Kinshasa and converted it into JMPR headquarters, stripped him of this national honors, and forced him into exile to the Vatican” (M. SCHATZBERG, 1988: 118).

Following the pressures of the Vatican, the Mobutu regime ceased its attacks, in 1975, against the Roman Catholic Church, which recovered some of its prerogatives, for instance, in education. Already in 1974, Cardinal Malula had returned from exile.

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During that time, the Catholic Church was still present in the fight against oppression. By its messages, exhortations and declarations20, the Church did not cease to condemn the ‘Zairian evil’ and the causes of the serious crisis affecting Zaire.

The 26th Assembly of Zairian Bishops, in September 1988, was devoted to the general topic “the Christian and the development of the nation”. This assembly devoted itself to the analysis of the situation of the country. Once more the need for a radical transformation was invoked: “the time has come when all those who enjoy a piece of authority must agree to clarify their control and their attitude with respect to this tragic and persistent crisis which affects the country! (...) We are convinced that rectitude of manners, moral and political as well as intellectual, is the condition of health of society. It is necessary for us thus to work, at the same time, for the conversion of attitudes and the improvement of the structures which often slow down progress. One should assign to this task well trained men, intellectually and morally, and not those who believe that appearing like a ‘good militant’ and good speaker is enough to deserve to be promoted and maintained at the head of public institutions (...). We expect the country’s leaders to restore to the national institutions their autonomy and their decision- making power, and to restore the sense of responsible authority, conceived not as the source of enrichment or the means of oppression or exploitation of people, but as service” ("Christian and Development of the nation", Kinshasa 1988, p.88-89, quoted by Isidore NDAYWEL, 1995: 750-751). It should be said that the Memorandum of the Bishops21, released during the popular consultations initiated by president Mobutu in January 1990, contained severe criticisms which pushed Mobutu to start the democratic process22.

20 Declaration of the Bishops on the current situation, Kinshasa 1975; Call to the recovery of the Nation, Kinshasa 1985; Message and declaration of the Bishops of Zaire: 25th anniversary of the independence, Kinshasa 1985; All called to build the Nation, Memorandum and Declaration of the Bishops of Zaire, Kinshasa 1990. 21 “All invited to build the nation”, Memorandum and Declaration of the Bishops of Zaire, Kinshasa 1990 22 Simon-Pierre METENA M’NTEBA argues that “it is not at the Baule Summit in June 1989 or with the Perestroika dynamics and the subsequent collapse of the Red Empire, but within African churches that will emerge therefore the wave, which will constrain African autocracies to propose the possibility of other policies that respect the human being” (ce n’est pas tant au sommet de la Baule (juin 1989) ou dans le souffle de la Perestroika et dans l’effondrement subséquent de l’Empire rouge mais bien au sein des Eglises africaines que prend naissance la vague qui contraindra les autocraties africaines à envisager la possibilité d’autres politiques qui respectent l’homme” (“Les conférences nationales africaines et la figure politique de l’évêque-président”, in Congo-Afrique, No 276, Juin-Juillet-Aout 1993, p. 366). 40

2.2.2.3. The Political opposition

During the first years of his reign, Mobutu met practically no political opposition, insofar as all possible opponents were neutralized very early, and insofar as the new system, with its party the MPR, was designed to systematically crush any tendency to opposition. T Turner and Y. Crawford note, "by late 1967 the heavyweights of the First Republic had been co-opted, neutralized, or jailed. Nendaka, Bomboko, and Mungul-Diaka were the key figures in the New Regime. Tshombe was jailed in Algiers, Godefroid Munongo, and Kamitatu were imprisoned in Zaire. Kasavubu (the former president) was in ‘flexible insulation’ in his home village, and Adoula was ambassador in Washington” (T. Turner & Y. Crawford, 1985: 58, quoted by D. KADIMA, 1996: 147).

The public execution of four former ministers of the First Republic on 30 May 1966, namely Prime Minister-designate Evariste KIMBA, Finance Minister Emmanuel BAMBA, Minister of Mines and Energy Alexandre MAHAMBA, and Defense Minister Jerome ANANY, dissuaded any tendency to opposition against the regime. This affair became known as the “Pentecost Plot”. T. Turner and Y. Crawford argue that “the Pentecost Plot had a tremendous effect on the political world; opposition carried mortal perils” (T. Turner & Y. Crawford, 1985: 57).

By 1967-1970, important personalities of the first Mobutu team, such as Bomboko, Nendaka, Mungul- Diaka, Manzikala,and Tshisekedi, had all gone through periods of arrest and disgrace (D. KADIMA, 1996: 147).

A relative peace and stability prevailed until 1977 when the first opposition to the regime emerged from the groups in exile: the Mouvement d’Actions pour la Résurrection du Congo (Movement of Actions for the resurrection of Congo), MARC, which had very little influence, and the Front de Liberation Nationale du Congo (Front of National Liberation of Congo), FLNC, made up of the ex-Katangese rebels based in Angola under the direction of BUMBA Nathanael. On 8 March 1977, the FLNC launched its first armed struggle, known as Shaba I. Another armed attack occurred in 1978, known as Shaba II. “These offensives demonstrated the weaknesses and disorganization of Mobutu's army, as rebels did not meet any serious resistance” (KADIMA, 1996: 147). Some analysts explain the deterioration of the army by the bloody purge of soldiers from the Tetela ethnic group, which followed an alleged coup attempt in 1975 by Colonel OMBA PENE, then private Secretary of President Mobutu and native of this ethnic 41 group (Olivier LANOTE, 2003: 23). The regime had to resort to foreign military assistance provided by Morocco, (with French logistical support) in 1977, and France and Belgium in 1978, (with American logistical support) (LANOTE, 2003: 23)23.

It is significant to note that President Mobutu found in the deficiencies of the Forces Armées Zairoises, at the time of these two wars of Shaba, a pretext to carry out new purges in the ranks of the army, by clearing all officers from all provinces except that of the Equateur, his native province, and of Haut- Zaire, a province close to the Equateur. This was the beginning of the regionalization of the army, which was soon made up in its majority of elements from the president’s own province. Quoting J.P. PABANEL, Denis KADIMA points out that “in 1990, out of 37 Generals of the FAZ, the Equateur province held a record of 18, that is 49 percent, and all the security services were headed by members of Mobutu's Ngbandi clan:

- Agence nationale de Documentation (National Agency of Documentation), AND (Honoré Ngbanda) - Agence Nationale d’Immigration (National Agency of Immigration), ANI (Goga) - Conseil National de Sécurité (National Council of Security), KEMA, a non-Ngbandi but native of Equateur - Service d’Action et de Renseignement Militaire (Service of Action and Military investigation), SARM (Général Mayele); and - Garde Civile (Civil Guardian Unity), a new security unity created by Mobutu in 1984 and which was led, two years later, by Philémon Baramoto, close relative of Mobutu (cf. J.P. PABANEL, 1991: 104, quoted by D. KADIMA, 1996: 162).

The two wars of Shaba, the popular disenchantment expressed through strikes in Kinshasa and Shaba in 1976-1977, and external pressures, especially from the Carter administration in USA, forced Mobutu to introduce some institutional change (D. KADIMA, 1996: 148). In theory, he left the Prime Minister to lead the government, and agreed, in 1977, to organize the first legislative elections since his advent to

23 For more details, see R. YAKEMTCHOUK, “Les deux guerres du Shaba. Les relations entre la Belgique, la France et le Zaire”, in Studia Dipomatica, 1988, vol. XLI, No4-5-6).

42 power. Several independent-minded people entered Parliament. A new phase of the battle for democracy had begun in Zaire (D. KADIMA, 1996: 148).

It was in 1980 that the first internal non-violent opposition was organized by some 13 members of the Parliament, including Etienne THSISEKEDI, today the incarnation of political opposition in the DRCongo. In an open letter of 52 pages to President Mobutu, these members of Parliament asked for political reforms towards political democracy and administrative decentralization. Afterwards, they were arrested, tortured, and removed from parliament. In 1982, after their release from jail, they defied the monolithical regime by creating a separate political party, the Union pour la Démocratie et le Progrès Social (Union for Democracy and Social Progress), UDPS.

This "intolerable defiance of the regime" was criticized and condemned immediately by the state. In his speech to the 4th ordinary session of the Central Committee of the MPR on 15 March 1982, Mobutu made these observations: "I have said on several occasions and want to repeat it today, loudly, publicly, plainly and emphatically, Zaire is a unitary state and will remain unitary. Our national party is the MPR and it is the only one. As long as I am alive, this will always remain so. This is clear and distinct, and cannot be questioned "(translated and quoted by D. KADIMA, 1996: 149). Mobutu’s attempts to counter this new opposition generated much criticism of his regime, internally and externally.

2.2.2.4. Towards the CNS

Having been used as a faithful ally of the Western countries in the region during the cold war, Mobutu had to accept, against his will, the upheavals on the international scene; in particular the collapse of the Soviet empire, with ‘perestroika’; the calling into question of certain African regimes (Niger, Senegal, Cote-d’Ivoire, Benin, Mali) by the students, the teachers and the public servants of these countries, who demanded multipartism and democratization; the withdrawal of Cuban soldiers from Angola, the independence of Namibia, the first signs in South Africa as a movement towards democracy at the end of 1989, were all considered as African counterparts to ‘perestroika’. In addition, the Belgo-Zairian crisis made it possible for the Zairian president to measure the discredit into which he had fallen since 1988 from the perspective of his French and American partners. 43

Indeed, the fall of the Berlin Wall announced the end of the geopolitical stake Zaire inherited from the cold war, and the withdrawal of the unconditional support of Western countries for President Mobutu was a harbinger of his eventual international insulation and isolation.

In addition, the brutal fall of the Rumanian president, Nicolae Ceausescu and his execution after a sham trial convinced Mobutu, known as the "African clone of Ceausescu" because of the friendship linking the two men and their methods of government, that he had to proceed to the democratization of the institutions of his country (LANOTTE, 2000: 16). The Belgian journalist, Colette Braeckman, notes that the only attitude available to Mobutu, was “to precede the change to better control it, while turning to the people to request a new legitimacy” (Colette BRAECKMAN, 1992: 340).

On the internal level, the socio-political evolution of the country encouraged president Mobutu to put an end to his regime and “to grant” democracy to his people (LANOTTE, 2000: 16).

In January 1990, Mobutu announced in a memorable speech a round of popular consultations throughout the whole country in order to know the will of the people on the global administration of the country (LANOTTE, 2000: 17; NDAYWEL, 1998: 751). 6 128 texts were written all over the country in response to the step initiated by president Mobutu, with severe criticisms and proposals for solutions without leniency. Among the most critical texts, one counts the Memorandum of the Catholic Bishops and that of the public servants, who had for years been reduced to silence (NDAYWEL, 1998: 751). The proposals of the Memorandum of public servants are summarized in these terms: the dissolution of the constitution, the removal of the MPR and its bodies, the recognition of multipartism, the organization of a national conference, the installation of a provisional government, the drafting of a new constitution and its adoption by referendum under the UN and the OAU supervision, as well as the organization of presidential, legislative and local elections (NDAYWEL, 1998: 751-752).

In response to these popular consultations, president Mobutu announced, in a noticeably solemn speech on 24 April 1990, the end of the 2nd Republic and the advent of the democratic transition (LANOTE, 2000: 17). A series of significant measures were announced on the same occasion, in particular the resignation of president Mobutu from the head of the MPR, the introduction of multi- 44 partism, a clear separation between the party and the State, the rehabilitation of the three institutional powers, a government of transition for a period of one year, the institutionalization of a commission charged to work out a new constitution, the abandonment of a whole series of external signs of attachment to the MPR (LANOTE, 2000: 17), and, of course, the organization of free, fair and democratic elections on all levels, at the end of this transition.

In fact, although president Mobutu was marginalized by the international community (after the massacres24 committed by elements of the Division Spéciale Présidentielle (Special Presidential Division), DSP, the specialized security unit of the President, on the Campus of Lubumbashi, the capital of copper), the announced transition turned very quickly into a "politico-institutional cacophony" (Bob KABAMBA, 1999, quoted by O. LANOTTE, 2003: 17) until the seizure of power by Laurent-Désiré Kabila in May 1997. Subsequent to international pressures, president Mobutu yielded on 6 October 1990, in favor of integral multipartism, and a sovereign national conference, long demanded, was finally promised. But between this date and the opening of the CNS, the transition was painful; there were skids and there were martyrs, particularly the students of the Campus of Lubumbashi and the militants of the UDPS at Mbuji-Mayi (NDAYWEL 1998: 752). In addition, Mobutu continued to violate the core of the Zairian political community. He exploited pure integral multi-partism and invented the strategy of multimobutism (Colette BRAECKMAN, 1992: 348) in an attempt to neutralize opposition parties, which one counts as more than 300.

24 During the night of 11 May 1990, following violence which had been exerted against students from the Equateur province, elements of the Civil Guard and the Service of Action and military Information (SARM) carried out a punitive mission on the Campus of Lubumbashi. In the street, one speaks of several tens of thousands of students killed. The Western press and the Zairian opposition encouraged Belgium to adopt a firmer attitude towards the Zairian regime, and relayed these rumors at once. Even if the assessment of the repression never could be established with exactitude, it is increasingly obvious today that its gravity was heavily over-estimated by the Belgian observers, media and authorities. According to Honoré Ngbanda, former adviser and minister of defense in Mobutu’s regime, this issue took exaggerated proportions because of a letter addressed to the Belgian authorities by Jean Nguz a Karl I Bond, former minister then in the opposition. In this letter, Mr. Jean Nguz claims to have the proof of “massacres” and the existence of “mass graves”, and asks the Belgian government to seize this opportunity to destabilize once and for all president Mobutu. Belgium, which had just signed the Agreements of Rabat renewing bilateral co-operation, seized the occasion to reconsider its engagements. Upset by the refusal of the Zairian authorities to constitute an independent international committee of inquiry charged to throw light on these events, Brussels hardened its tone towards Kinshasa. This culminated on 22 June 1990, in the rupture by Marshal Mobutu of bilateral co-operation (cf. G De VILLERS, 1995: 215-223, quoted by LANOTE, p.18-19). 45

Table. No. 0.3. Political grounds during the CNS

SIGLE POLITICAL NUMERICAL NAME TENDENCY IMPORTANCE 1. Alliance des Forces Islamiques pour le AFIC C 0, 2 changement (Alliance of Islamic Forces for change) 2. Union des Forces Independantes pour AFICI C 19 le Changement Integral (Union of Independent Forces for Integral change) 3. Collectif Progressiste (Progressive CP CL 8 group) 4. Front Uni de l’Opposition (Opposition FUO CL 4 United Front) 5. Groupe du Consensus Acquis au GCAC CR 2 Changement (Group of Consensus for change) 6. Mouvance Presidentielle (Presidential MP R 15 ‘Lobby’) 7. Union des Forces Centristes (Union of UFC CR 1 Centrist Forces) 8. Union des Forces Independantes pour UFIC CR 3 le changement (Union of Independent Forces for change) 9. Union des Forces Nationalistes UFONAL C 0, 8 Lumumbistes (Union of Nationalist Lumumbist Forces) 10. Union Sacree de l’Opposition USLD CR 5 Liberale et Democratique (Liberal and Democratic Opposition of Sacred Union) 11. Union Sacree de l’Opposition USOR L 42 Radicale (Radical Oppositon of Sacred Union) (NB: C=centre; R= right; L= Left)

The appeal for a national conference, as a body in charge of the drafting of new constitution, started on the basis of internal and external pressures. Although he accepted the organization of a national forum, Mobutu refused to grant it full sovereignty. Mobutu and his partisans supported the organization of a constitutional conference, whose powers would however be limited to the development of a constitutional project to be subject to popular referendum, of an electoral law and an agenda. In the absence of the constitutional conference, Mobutu and his government directed by professor Lunda Bululu, suggested the organization of anticipated elections and the formation of a Chamber of deputies from which the constituents would come (MULAMBU MVULUYA, 1997: 61).

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The opposition parties were not ready to accept the elections as these could be manipulated by the regime, which still controlled the administration. During the first quarter of 1990, all significant opposition parties took a position in favor of a national conference following the example of Congo, Benin or Togo. In a press conference in Brussels, on 1 May 1990, professor Marcel LIHAU, founder member of the UDPS, declared, “the UDPS and the other forces of the opposition outside claim the convocation of a national conference instead of the constitutional conference" (quoted by MULAMBU MVULUYA, 1997: 60). Alerted by the experience of what has just occurred - in Congo and in Benin - president Mobutu opposed himself categorically to the convocation of an assembly that would call his legitimacy into question. On 6 March 1991, president Mobutu signed an ordinance that the opposition rejected energetically and claimed a sovereign national conference. For this opposition, the sovereignty of the CNS meant that it should have an exceptional, even extra-constitutional and revolutionary character; while its decisions and resolutions should be endorsed by everyone and applicable to all without exception (KINKELA VI KANS' Y, 1993: 141).

Appointed Prime Minister in March 1991, Professor Crispin Mulumba Lukoji fought, in spite of the opposition of the president of the Republic, to obtain the sovereignty of the national Conference, which started working on 7 August 1991. The CNS was charged to tackle all the issues of national interest in order to examine all the major options available to build the third republic. It had as concrete tasks the development of a draft constitution, the determination of the content of the electoral law as well as the electoral calendar (KINKELA VI KANS' Y, 1993: 145).

2.2. The CNS: Opening, Composition, Actors and Works

The CNS started on 7 August 1991, under the presidency of the Prime Minister Crispin Mulumba Lukoji, and proceeded, during the plenary of August 1991, to the preparatory commission for the validation of the first mandates and the election of the provisional Office. On this subject, professor Ndaywel notes, "convened under the pressure of the population, the CNS was initially organized, so as to prove its uselessness and its lack of effectiveness. Confusion around the mode of recruitment of its delegates, the installation of a first completely inoperative office, chaired by an old man, Pastor Isaac Kalonji Mutambayi, assisted by two young high-school students, Mr. Waza Banga and Ms. Mwadi Kabongo, are eloquent illustrations of this inefficiency "(NDAYWEL, 1995: 764). The election of these 47 people was founded on article 26 of the statutory rules of the preparatory commission, according to which the oldest member of the assembly should exert the role of the president of the provisional Office, assisted by the two youngest members of the assembly.

This provisional office accepted the mission of continuing the validation of the mandates. Unfortunately, the procedures of designation of its members, as well as the methods of direction, were strongly contested by the parties of the radical opposition, which decided to leave the CNS.

But far away from the Palais du Peuple, where this forum was held and while the delegates to the CNS deliberated, the living conditions of the population continued to deteriorate. The numerous demonstrations and repressions were increasingly violent. These disorders emerged when soldiers, reduced to misery and expressing their exasperation, indulged in pillage on 23 and 24 September 1991 (LANOTE, 2000: 23). The following day, French and Belgian troops intervened to ensure the protection and the repatriation of their nationals25.

These disasters pushed the Prime Minister Crispin Mulumba Lukoji to resign. He was immediately replaced by Mr. Etienne TSHISEKEDI wa MULUMBA, after the agreements of the Palais des Marbres under the auspices of the Senegalese Minister of State, Mr. Abdoulaye WADE. Following a constitutional dissension26, Mr. Tshisekedi was fired from his functions - a few days only after his nomination. It was Bernardin Mungul-Diaka, who assisted the regime to escape from the impasse, from 23 October to 25 November 1991. The appointment of Mungul-Diaka as Prime Minister coincided with the resignation of Isaac Kalonji Mutambayi from the post of President of the provisional Office of the CNS and the reconvocation on 20 November 1991, of the CNS by the new Prime Minister.

A little later, new negotiations at the Palais des Marbres lead to the appointment of Jean Nguz a Karl I Bond, a defector of the opposition, to the post of Prime Minister.

25 According to the ambassador Jean COEN, “Zaire knows in these days of September 1991 a true vacuum of power, comparable with that which existed in France at the time of the events of May 1968 with the disappearance of General de Gaulle. Nobody knows where Marshal Mobutu is. (...) If he had wantedt, Etienne Tshisekedi would not have had any problem in seizing power thanks to the presence in Kinshasa of Belgian and French troops. But the leader of the UDPS refused any idea of takeover by force” (Interview with Bob KABAMBA, quoted by LANOTTE, 2003: 20).

26 This dissension related exactly to the formula of performance of oath. Prime Minister Etienne Tshisekedi refused to make allegiance to President Mobutu. 48

Chaired by the Minister of Interior, Mr. Mandungu Bula Nyati, in the absence of the Prime Minister, the plenary of December 11 and 12 1991 was devoted to the election of Mgr Laurent Monsengwo Pasinya chairman of the provisional office with 1 497 votes, (65 percent of the votes) against 765 (32 percent) for Mr Kanku Dilu, the candidate of the regime. This election was followed by those of the others members of the Office: Mr. Ileo Songo Amba was elected as 1st vice-president, Mr. Mulongo Mukalay as 2nd vice-president, Mr. Félicien Tshibangu Kalala as secretary-reporter, Stanislas Bakatupingana Tshisuabantu 2nd secretary-reporter, Kibancha Kamala 3rd secretary-reporter. The scrutineers were also elected, at a ratio of three members per component. The components consisted of Public Institutions/government, opposition parties, civil Society, as well as the guests of the CNS.

Once officially installed, the Provisional Office worked, between 24 December 1991 and 19 January 1992, on the checking and the validation of the mandates; on the approbation of the interior settlement, and that of the final Office.

On 19 January when the CNS had already just validated the mandates of 2 315 delegates, the Prime Minister Jean Nguz suspended it, claiming that the participants had exceeded their rights (MULAMBU MVULUYA, 1997: 61). Denis Kadima argues that this suspension was due to the fact that Jean Nguz was deprived of the support of the majority of the CNS delegates (KADIMA, 1996: 153). This resignation caused the indignation of national and international opinion. Many street protests were organized. The most memorable was the march of the Christians of 16 February 1992 in Kinshasa, which was followed by bloody repression by the army. “This march of hope led to the supreme sacrifice of a few tens of human lives, called “martyrs of democracy” (NDAYWEL, 1995: 763). Forced by the pressure of these events, Mobutu agreed to reopen the CNS on 6 April 1992. From this date until 20 April, the CNS continued the validation of the outstanding mandates and the creation of 4 commissions (Settlement of agenda, Definition of the Objectives of the CNS, Conciliation and Election of the Final Office).

By 18 April, almost all the mandates were validated and the CNS had 2 850 delegates. On the same date, the Settlement of the Interior Order was adopted. On 21 April 1991, the Final Office was elected by acclamation. Its composition was as follows: President: Mgr Mosengwo (civil society), 1st vice- 49 president: Mr. Joseph Ileo Songo Amba (political parties); 2nd vice-president: Mr. Dzbo Kalogi (public Institutions); 3rd vice-president: Mr. Mulongo Mukalay (public Institutions); General reporter: Maitre Kinkela Vi Kan' sy (political parties); 1st associated general reporter: Maitre Stanislas Bakatupingana Tsisua-Bantu (public Institutions); 2nd Associated General Reporter: Mr. Mavungu my Nzau Masinza (political parties); Secretary-General: Mr. Kisanga Kabongelo (political parties); Associated Secretary- General: Mr. Kibancha Kamala (civil society); General Treasurer: Mrs Thérèse Mulanga (civil society); Associated General Treasurer: Mr. Bapolisi (civil society).

Table No.0.4. structure of the CNS

Planary 2 850 delegates

Office 23 Commissions

On the occasion of the official installation of the CNS’ Office, on 24 April 1992, Mgr Monsengwo said, “We are at this place, because Zairian people want the change (...). If the change is a national political option, and that is what we joined together to make, does this not urge us all to effect this change? We came to this place, to work for the improvement of the living conditions of our populations. Whoever would pursue here a goal other than the integral welfare of our populations, should leave the Palais du people, because he does not have his place here” (quoted by KINKELA VI KN' SY, 1993: 148).

Once installed, the Final Office was put immediately to work. The work of the CNS itself started in the form of declarations of general policy from 7 May 1992. From 7 May 1992 to 12 June 1992, 550 declarations of general policies had been deposited at the Office of the CNS; but only 192 had been read during the plenary. 204 declarations came from the political parties, 263 from civil society, 48 from the public Institutions, and 35 from the Guests of the CNS. Most of them were general views on the causes of the Zairian crisis, followed by proposals about the society to come. On the basis of these declarations, the Commission of the Agenda, chaired by professor Félicien TSHIBANGU TSHIAUSU KALALA, broke into 14 sub-commissions which were to address the major topics of national life as 50 arising from the declarations. Thus, these sub-commissions dealt respectively with the constitutional field, the political and administrative field, the legal field, that of defense, security and civil protection. Other areas covered were the economy, financial and monetary policy, and national education, scientific and technological research. Other sub-commissions were to deal with information, the press, the environment, the conservation of nature, ethics, nationality, and health.

In its conclusions, the Commission of the Agenda proposed to the CNS’ plenary the formation of 23 commissions charged to look further into the respective topics. It was necessary to decide whether to entrust work to specialists and put on leave the rest of the delegates, or to maintain the 23 commissions while making as much use as possible of all the delegates? The CNS chose to use the delegates in the sectors of their experience, thus making of the 23 commissions the logical prolongation of the CNS. In many ways, this decision slowed down work, because it was necessary to explain matters to the neophytes and to organize the transport of delegates through the city of Kinshasa to places often far away from the Palais du peuple. Initially, work in commissions was to take 20 days, and the hearing of their reports in plenary 10 days.

The 23 Commissions could be gathered into 5 groups:

a. Commissions of political and legal issues

- Commission of the transition charter charged to develop a draft of Constitution regulating the transitional period; - Constitutional Commission, charged to work out the fundamental principles of political, economic, social and cultural organization; more concretely, it was to define the form of the State, the political régime, the fundamental rights and freedoms of the citizens, economic, social and cultural reform; - Legal Affairs Commission, whose role was to define the modes of organization and operation of various authorities of justice (civil and military justice, and magistrate); - Political Affairs Commission, in charge of studying issues related to the form of the State, the political régime, the flag, the national anthem, the motto, the armorial bearings, the territorial organization, specific issues of internal and external policy, nationality and various other issues related for instance to the predatory management of the State under Mobutu’s regime, human rights abuses, the 51 democratization of the traditional authority, the pillage of the inheritance in the embassies of Zaire in Vienna and Tokyo; - Administrative and territorial Commission charged to examine all the issues related to the public administration. b. Commissions of socio-cultural issues

- Commission of ethics charged to establish the diagnosis of moral, individual and collective behaviors, observable Zairian society during 32 years; - Commission of national education, in charge of the issues related to national education: “Which education for which type of society?” ; - Commission of scientific and technological research, whose mission was to find mechanisms to revalorize scientific and technological research; - Socio-cultural Commission, in charge of the issues dependent on work and social welfare, youth, sports and leisure, culture and Art, and specific social issues, such as the protection of the vulnerable or marginal categories – for instance people of the third age, street or abandoned children – and Community development in rural areas, including housing for poorest. - Commission of Health, charged to study the medical legislation, the management of the health system, pharmaceutical policy, teaching, and research of traditional pharmacology; - Family-woman-child Commission, in charge of issues related to the protection of the family, the base of any development, by promoting monogamist marriage; - Information and Press Commission charged with studying mechanisms suitable for increasing the freedom of thought and expression, necessary for any democracy. c. Commissions on economic and financial issues

- Commission of economy, industry and trade, charged to define the economic system, a coherent industrial policy, a policy promoting Small and Average Enterprises, the craft industries and the informal sector; to define a new framework for the exercise of trade, the development of the principles of co- operative development, the setting up of the objectives as regards economic growth, to define a new philosophy of planning, and the main trends of the economic program of the transitional government. 52

- Commission of finances, banks, credit and currency, in charge of the public finance, taxation, the national debt, the policy of currency and credit; - Commission of the portfolio of the State, charged to examine, on the one hand, the identification of the properties of the State, which includes the stocks, social shares and other rights held by the State in public enterprises, mixed investment enterprises as well as enterprises of international law; and in addition the obligations subscribed to by the State; - Water, forests, mines and energies Commission, whose role was to examine the suitable mechanisms for the good management of these national resources, viz water, forests, mines and energy; - Agriculture, farming, fishing and rural development Commission, charged to examine the problems involved in the failure of agricultural, pastoral, forest and fishing sectors, and to reflect on the generalized misery of the rural areas in the light of the rich potential the country enjoys; d. Commissions on technical issues

- Commission of the environment and nature conservation, charged to propose restructuring measures for all administration and services linked to the environment, bio-diversity, tourism and land affairs; - Commission of population, statistics and documentation, charged to examine the demographic situation of the country, to design a bank of computerized data of the population, to look further into the issues relating to documentation and files in order to work out a national policy in this sector; - Commission of the infrastructures, transport, communications, posts and telecommunications, charged to give a report on these services and to propose constructive solutions; e. Sensitive Commissions

- Defense, Security and civil protection Commission, charged to make a diagnosis of the system of defense and public security and of the intelligence services of the country, to question and specify, in particular, the role and the mission of these services; - Commission of corruption27, charged with determining the responsibility of the political régime and the successive governments of the 2nd Republic and of the pre-transition, insofar as they violated all the

27 We try to translate here the expression “Commission des biens mal acquis” (Commission of ill-gotten gains). 53 standards of social life, and in particular the prohibition on the State to profit from the advantages of power. This commission thus pleaded for reparation of the crimes committed; - Commission of the assassinations and violation of the human rights charged by the plenary to examining the obvious cases of political assassinations and violations of human rights during 1st and the 2nd Republics. This commission received 2 500 files, but could treat only 400, given the limits of time.

It should be noted that, in spite of their significant character, the reports of these three last commissions were not presented during the plenary of the CNS, which was broadcasted live on television and radio.

In addition, I have chosen not to go into the details of the reports of each one of these commissions as the Constitution that we are going to analyze in the following pages constitutes itself a true synthesis of these reports. But, before arriving at this point, I would still like to underline some historical details, which will enable us to understand the decline and demise of this national forum.

At the same time as it released its declarations of general politics, the CNS elected, on 15 August 1992, Mr. Etienne TSHISEKEDI wa MULUMBA Prime Minister for the transition. For the first time since the advent of Mobutu to power, the Prime Minister was elected and not appointed by the president (I NDAYWEL, 1995: 762; O. LANOTTE, 2000: 20).

But from January 1993, after the CNS had finished its work in December 1992, in a climate of generalized suspicion, a new crisis emerged with the ousting of Etienne TSHISEKEDI subsequent to a monetary controversy related to the putting into circulation of the new note of 5 million Zaire28. In fact, Mobutu stood to benefit from this sabotage of the national conference, which questioned his legitimacy. This crisis required new readjustments different from the forecasts of the transition as defined by the CNS. Vis-à-vis the Haut Conseil de la Republique (High Council of the Republic), HCR, emanating from the Parliament of the CNS and broadly representative of the opposition, Mobutu’s supporters tried to reactivate the national ex-Assembly in order to counter the HCR. “One thus expects a collapse of the

28 From January 28 to 2 February 1993, the entire country once descended into plundering by the elements of the FAZ who could not use their pay, made with the new notes of 5 million Zaire. This chaos was made worse as this demonetization of the notes of 5 million Zaire by the Prime Minister resulted in the scission of Zaire into various monetary zones, with the rejection of the new notes in Shaba/Katanga and Kasai. 54 political institutions, each one asserting legitimacy: on the one hand, Mobutu supporters with the government of national union led by Mr. Faustin BIRINDWA supported by the National Assembly and with de facto legality and on the other, the government of the "greens" led by Etienne TSHISEKEDI with the HCR as legislative body, supported by the legality of the CNS” 29.

Thanks to the dialogue carried out by Mgr Laurent Monsengwo, President of the HCR, a new Parliament, the Haut Conseil de la République-Parlement de Transition (High Council of the Republic- Parliament of Transition), HCR-PT - a fusion of both the HCR and the National Assembly – and a new government as well, chaired by Léon Kengo wa Dondo, was born. It is what has been called the "third way"30. Was it necessary to regard all these efforts of the CNS as null? Once again, I agree with Congolese historian, Professor Isidore Ndaywel, that the CNS must be regarded as the high point marking the passage from the old to the new political order (NDAYWEL, 1995: 761), perhaps more symbolically than in reality. All these principles remained hidden in the secrecy of the archives. For this reason we estimate that the work realized in this national forum cannot be underestimated. It deserves attention from anyone interested in the qualitative change of the Congo, as the CNS was harnessed “to mark out the right ways for the future of the Congo”. It is consequently important to review the Constitution resulting from the CNS in order to apprehend the change that this forum intended to outline. In what follows, we will underline the contents of this constitutional project of more than 200 articles, as well as the concrete vision that it reflects.

29 Bob KABAMBA, art. cit. quoted by O. LANOTE, 2003: 21 30 This third way will be interpreted by the Zairian people and the political opposition as treason by Mgr Monsengwo insofar as it gave again to Mobutu all power over the nomination - at his side - of Leon Kengo wa Dondo, several times his Prime minister. Analyzing this appointment from an external point of view, Georges NZONGOLA argues: “… the western powers rejected the democratically elected Prime Minister because their interests would be better served by Mobutu, Monsengwo, and the technocrats associated with Léon Kengo wa Dondo, the longest serving Prime Minister of the Mobutu era. With Mobutu and Kengo, the very people who had driven the Zairian economy aground with their excessive corruption, Western powers and the Bretton Woods institutions, could hope to recover the loans they had made to Zaire…” (1998: 18). 55

2.3. Analysis of the CNS’ Constitution through Lefort’s theory

To undertake this enterprise properly, we want to take as a starting point the conceptual framework for constitutional analysis developed by Siri Gloppen. This framework has the advantage of putting forward the most significant dimensions on which constitutions vary. This makes it possible to read, or to analyze, a constitution through its broad outline, rather than article by article. The most significant dimensions to underline are: a. Institutional set-up: this dimension defines the form of the State, the shape of the government, the composition of the Parliament, the relation of the executive and the legislative, the electoral system, the political system; it describes the process of decision-making, as well the degree and the form of decentralization which the system provides. b. Interpretation of reality: any constitution reflects issues faced by its society. These issues can be of a structural or cultural nature. On a structural level, a constitution can devote laws to fight poverty, social inequalities, and violations of human rights or the abuse of power. On a cultural level, the constitution can be a response to cleavages that result from ethnic, religious or linguistic diversity. c. Central value: a constitution can be directed by "a normative focus” such as justice, or directed by a functional objective, e.g. to achieve stability. d. Objective: the fundamental question at this level is to know if the constitution' aims at treating the symptoms or curing the disease. It is about how to determine its dominant tendency: is it turned towards the transformation, or the regulation, of society and the regime? e. Response to pluralism: nation-building ambitions are present in all constitutional schemes. In its classical form, the aim of nation building is assimilation (create one nation within a homogenous culture and common loyalties); the liberal strategy of nation-building is based on the acceptance of plurality (it seeks to encompass all citizen on equal terms within a common political arena, regardless of cultural differences). Consociational constitutional models build more explicitly onto societal plurality. The aim is a peaceful coexistence between largely autonomous (ethnic) groups through mediation and power 56 sharing. The guiding ideal is that each (ethnic) group has its own political sphere, reducing the common ground to a minimum. Separatist constitutional schemes go even further, and argue that no common ground should exist. Each ethnic group - and nation - should have its own state. f. State and Society relations: this can be conceived in different ways. For some, it is a matter of representation of group/ethnic/segmental/functional interests, while others stress the importance of individual participation. Political participation means to be involved in the electoral process, participating in the legislative process and policy-making as well, through the intermediate organizations of civil society. g. The constitutional domain and the domain of political: this can be established through constitutionalism, the rule of law, pre-commitment (a way to ensure that day-to-day politics do not frustrate long term goals), or a foreclosure of issues (an agreement not to address certain issues which are insoluble, or where the potential for damaging conflicts is high). h. The Normative Foundation/Justification: the presentation of constitutional models aims at explaining how each of the strategy/models may be seen as an answer to the problem of society – as a coherent answer according to a particular interpretation of reality. And it is also shown how different traditions in modern political philosophy provide each of them with a normative justification and questions the relevance of the alternative approaches. It is at this level that Claude Lefort’s approach will be useful in our analysis.

57

The Constitution of the CNS

Dimensions The Constitution of the CNS compared to the Constitution of the Mobutu regime

(i) Institutional set-up Mobutu Const. CNS Const.

Institutional focus arbitrary system legal system Electoral system majoritarian majoritarian Legislative-executive relations presidentialism parliamentarism Composition of legislature unicameral bicameral Compostion of executive one party integral multipartism Single executive Collective exec. body Decentralization unitary state federal state (highly centralized) decentralized Decision-making mode one person discussion, consensual (ii) Interpretation of reality

Methodological focus individual collective Problem focus structural structural and cultural Security inequality, poverty

(iii) Central value Power stability Justice, stability & National unity development

(iv) Objective status quo Transformation & Regulation (v) response to pluralism Assimilation Non-interference

(vi) State-Society relations fusion/identification representation & participation (vii) The constitutional domain authoritarianism constitutionalism rule of law (viii) Normative foundation/Justification Totalitarianism Philosophy of freedom

(i) Institutional set-up

The constitution of the CNS shows a real will to rupture with the 2nd Republic of Mobutu’s regime, basically characterized by the centralization of power by a tiny elite. One of the fundamental options of this constitution is federalism (art. 2). With federalism, it rejoined the mode of management of the State that prevailed before the advent of Mobutu to power. Federalism indeed carries hope, because it makes a more correct and rigorous management of persons and goods possible. 58

At the same time, the administrative terminology was modified31. The federal State was subdivided in provinces. The province, in its turn, was subdivided in districts and the latter in rural and urban communes. The aim was to put the provincial administration as close to the ruled as possible, and to bring the population closer to decision-making centers (NDAYWEL, 1998: 768). To federalism corresponds the parliamentary system. And whereas Mobutu’s regime allowed real authority to the Parliament only at the end of 1970s, the CNS’ Constitution conferred on this institution more authority than ever before. This Parliament, bicameral, was composed of the Senate and the Chamber of deputies. The senate represented the provinces plus Kinshasa, the capital city; and the Chamber of deputies represented the whole nation (art. 73). The election of this Parliament was by a universal suffrage for the members of the Chamber; while the Senators were elected by each provincial assembly (art.74). The article 94 grants to the federal Parliament the supervisory powers over the federal government and other public services. The process of decision-making follows this structure: initiating laws belongs jointly to the Senate and the federal government (art. 90); the project of laws is discussed in the Chamber of deputies, which adopts it by a final vote. The president of the Republic has the responsibility to promulgate the laws (art. 94). If a federal law is not promulgated by the President of the Republic within fifteen days, the President of the Chamber of deputies assumes the task.

The relation of the executive and legislative is basically determined by the place of the Parliament. The president of the republic, elected by universal suffrage, is the Head of the State; he represents the Nation and is the symbol of national unity. He appoints a Prime minister, head of government, on a proposal from the party or the coalition which holds the absolute majority in the Congress. The president, on presentation of the Prime Minister, appoints the other members of the cabinet. As further signs of rupture with the 2nd Republic, the country’s name was changed to the Federal Republic of Congo, and the flag and the national anthem, “La Zairoise”, were also changed.

31 Following the criteria defined in this constitution, the country must be divided into 25 provinces, with the capital city, Kinshasa. This repartition was kept in the new constitution adopted by the parliament on May 13, 2005 and voted at a national referendum on December 18, 2005 and promulgated on February 18, 2006. These provinces are: Bas-Uele (administrative city: Buta), Kongo Central (Matadi), Equateur (Mbandaka), Haut- Lomami (Kamina), Haut-Katanga (Lubumbashi), Haut-Uele (Isiro), Ituri (Bunia), Kabinda (Kabinda), Kasai (Tshikapa), Kwango (Kenge), Kwilu (Kikwit), Lualaba (Kolwezi), Tshilenge (Mbuji-Mayi), Lulwa (Kananga), Maindombe (Inongo), Maniema (Kindu), Mongala (Lisala), Nord-Kivu (Goma), Nord-Ubangi (Gbadolite), Sankuru (Lodja), Sud-Kivu (Bukavu), Sud-Ubangi (Gemena), Tanganyka (Kalemie), Tshopo (Kisangani), Tshuapa (Boende). 59

(ii) Interpretation of reality

The rupture with Zaire – the private State of Mobutu - was also marked by the assertion of fundamental human rights and freedoms. Claude Lefort maintains that the assertion of human rights means the independence of thought and opinion, in relation to power, and the cleavage between power and knowledge. In effect, the vocation of totalitarian power is to bring back to its pole thought and the public word, to encircle public space and to reduce it to its private space (LEFORT, 1994: 59). This assertion of fundamental rights and freedoms, particularly of the freedom of expression (art. 28, 29, 30, 31), has to be contrasted with the deprivation of public space by the regime of the 2nd Republic. Thus, the Bill of Rights states that everyone has the right to work (art. 50); it stresses the inviolability of the human being (art. 18), and recognizes that everyone has the right to create and participate in associations and other organizations of civil society (art. 33); to strike (art. 34), to move freely across the national territory (art. 45), to the secrecy of correspondence, telecommunication and all other communication (art. 47); to education (art. 40), to disobey and resist any individual or group of individuals who would seek to seize power or cling to power by force, or exert it in violation of the constitution (art. 7).

This Bill of Rights affirms also that all human beings are free and equal in dignity and in rights (art. 15); and all Congolese are equal before the law and have the right to equal protection by law (art. 16).

In addition to the fundamental rights and freedom, the constitution also insists on a series of structural factors that must be addressed to stabilize the country. Article 52 affirms that any Congolese is entitled to a sufficient standard of living and decent housing; article 51 speaks about the government obligation vis-à-vis the health of citizens; article 53 insists on the government responsibility to eradicate any form of discrimination against women.

(iii) Values and responsibilities

Opposite to Mobutu’s Constitution – inclined to secure the power of the prince – the CNS' constitution is based on a normative focus on social justice and the fundamental rights and liberties of individuals. Of course, it also highlights the need for a strong state that can be a powerful agent of social change. 60

(iv) Response to Pluralism: Assimilation or Non-interference?

During the second republic, any social, cultural or political division was negatively perceived. The tendency was to bring all back to ‘the one-party system’. In the constitution of the CNS, cultural pluralism, religious diversity, as well as political pluralism is tolerated and encouraged (art. 33, art. 28, and art. 5). Cultural and individual rights, and the religious rights of all citizens are given constitutional protection. Freedom of association is allowed (art. 33).

(v) State-Society relationship: Participation or Representation?

In opposition to the one-party system, the constitution of the CNS emphasizes both participation and the representation of interests. The choice of federalism as form of the State is motivated by the will to facilitate more participation. By being closer to their ruled, rulers will be more committed to the national interests at all levels: in the electoral process, in legislation and implementation, and in the construction of the constitution itself. Law is not only the matter of the regime, but that of all citizens in society. Participation should also be stimulated through institutionalizing consultation processes whereby civil society organizations are drawn into decision-making (Siri GLOPPEN).

Representation has the explicit goal of ensuring the representation of different interests in the legislature, in various institutions, in order to include even minorities in the political sphere (art. 55).

(vi) The constitutional domain

The spirit and the letter of this Constitution reveal “the commitment to changing society in a more just direction, and respect for the rights of individuals”. That is why we conclude that its constitutional domain is the “rule of law” (Etat de droit). As argues Madame Mulenga Kinji, “the Constitution of the CNS had as objective the establishment of the rule of law (Etat de droit) and of political pluralism”32. The ‘Etat de droit’ (rule of law) is a “State, which poses the real conditions and guarantees of all citizens

32 Madame Mulegwa Kinji is a member of Congolese Civil Society in Switzerland. This is her answer during an interview with me. 61 before the law”33. It seems that this constitution with a Bill of Rights that includes social and economic rights, as well as civil, political and cultural rights, opens the way for substantial ‘legislation’ in the Congolese political arena.

(vii) Normative Foundation/Justification

In his Editorial of No. 1458 of 14 December 1988 in Jeune Afrique, Béchir Ben Yahmed, the Editor wrote: “To enter in democracy is not to take three steps out of dictatorship. These are different doctrines. Between them, there is not a difference of degree but of nature; the passage from dictatorship to democracy is similar to a change of house. One destroys the first house for a new one”.

A comparison deserves to be made between the constitution of the 2nd Republic and that of the CNS. Between the two, the difference is not of degree, but of nature34. The constitution of the CNS is a true reflection of the Etat de droit - where human rights are completely protected, citizens are placed at the same equal position before the law - which is at the antipodes of Mobutu’s autocratic regime.

This constitution thus intends to restore a type of State “where the government considers itself, and is considered by the citizens as obliged to observe certain rules which limit its liberty of action by the obligatory intervention of other institutions and define also the considerations of the validity of the governmental acts - non-existent conditions in an autocratic regime, where it is enough that the will of the government was made known to be legally valid” 35. Such a State returns to the submission of all citizens to the law (all are equal before the law). It expresses a double wish: on the one hand, that of a power which governs the nation and the structures of common life to the service of all and does not reduce politics to a contractual management of individuals or interests groups; in addition, that of a

33 Paul RICOEUR, Du texte à l’action. Essais d’herméneutique, II, p.399-400. 34 Professor Elungu Pene Elungu of the université de Kinshasa, delegated to the CNS, described Mobutu’s regime in these terms: “inherit of modern totalitarianism, of Greek tyranny, Roman dictatorship and of Eastern despotism, this regime reveals its bankruptcy on three orders, which are in fact obvious indices of disorder, namely the order of the subversion, which melts society on the arbitrary will of a presumably absolute individual because armed, the order of corruption, which institutes at the place of the law of Labour and the law of the social the private law, the order of perversion, because it rebels against all that refers to values” (quoted by KINKELA, 1993: 139). 35 Eric WEIL, Philosophie polique, Paris, 1971, p. 157 62 power which establishes political structures that respect the freedom of citizens and the principles of social interaction in the respect of the forms and the established procedures36.

At the origin of these principles are, on the one hand, the will to preserve all social structures from the influence of political power, by ensuring their autonomy vis-à-vis this authority; in addition, freedom of speech and the word whose meaning goes beyond simple declarations of general politicies, but includes the recognition to any citizen, in this new democratic society, of his power and right to take part in the management of the State, to have a say in the decisions, and in the law-making process; in short, to the debates on issues of public interest.

Following Claude Lefort, the new democratic society outlined in the constitution of the CNS reaffirms the principle of power as the power of everyone, and thus the power of anybody. Since nobody is the incarnation of power, elections as the mode of access to the exercise of the State power finds its place in this constitution. At the same time, the rules which govern the society will not be from now on the emanation of the will of those who rule - because nobody can claim to have the truth a priori -, but more the fruit of the opinions of any member of society able to contribute to the construction of the political body. One is, thus, here far from the monolithic vision of power, as a body which concentrates in it knowledge and law.

2.4. Assessment of the CNS

In his book “Les conférences nationales en Afrique, une affaire à suivre…”, Cameroonian professor, Fabien Eboussi-Boulaga, writes: “The object of a sovereign conference is to establish individuals and very mixed groups by a ‘system-dream’, in a community of destiny articulated in the form of word and freedom" (Eboussi-boulaga, 1993: 127). Indeed, one of the features, which make the CNS a particularly significant moment of the history of the Congolese people, is the fact of having given again to these people their right to speak.

Though they borrow their imaginary from the convocation of the Etats Généraux Français of 1789, the organization and the course of the national conferences had as aim to restore the freedom of

36 METENA M’NTEBA, “Les Conférences nationales africaines et la figure politique de l’évêque-président”, in Zaire-Afrique, No 276, Juin-Juillet-Aout 1993, p.371 63 expression confiscated during decades by regimes of one party rule. The freedom of expression is one of fundamental freedoms in the economy of Claude Lefort’s thought. Democracy is democracy only insofar as people are entitled to have their say, the right to express themselves, the right to discuss issues relative to the State and its organization. That is why we consider the CNS as a moment of foundation, of new beginning of a new society. Eboussi-Boulaga, paraphrasing the French historian, F. Furet, writes: “A National Conference is not a transition, a simple epochè. It has the character of a beginning, which is a restarting. This one is a foundation... It is this unexpected breach in the wall of need, determinism and fatalism, which opens the possibility of a liberty of action” (Eboussi-boulaga, 1993: 167). It invites one to see differently, to dare to think and dream the possible. New evaluations, new standards are proposed, which shake or reverse the generally accepted ideas and the established routines. This distancing enables a great power of clarification and analysis, which is historically durable. It makes available and opens another beginning (EBOUSSI-BOULAGA, 1993: 171). In short, one is allowed to think that in the present and the foreseeable future, any legal and political order must take as its point of departure the universal principle which emerged from the CNS (EBOUSSI- BOULAGA, 1993: 172).

Concretely, although it never gave rise to a new democratic Congolese society37, the CNS left marks which continued, even at the height of its various wars, to influence Congolese society: the experiences of the Parlemantaires debout, the role of civil society, the press, etc.

2.5. Social dynamics after the CNS

Given its association with the quest for freedom and a better social order, the concept of democracy is incomplete without reference to the notion of fundamental human rights (Georges NZONGOLA- NTALAJA, in G. NZONGOLA-NTALAJA & M. C. LEE, 1997: 12).

When it came to an end, the CNS could already see emerging, through various social practices the spirit, which it embodied, of bringing to the Congolese people more freedom, of awakening them to their

37 Describing the reasons for which the CNS did not reach its objectives, Mme Mulegwa Kinja argues: “The CNS had reason and right at its side, but Mobutu had force and money with him. The consequence, opposition was corrupted and destabilized to the benefit of the regime, and the 3rd Republic was a dead-born child” (Mme Mulengwa Kinja’s response to our questionnaire). 64 rights and fundamental freedoms. Of these practices, we shall discuss those which have survived to date, namely the experience of the Parlements debout, the proliferation of human rights organizations and social movements, the proliferation of press organs, written and audio-visual as well.

2.5.1. The ‘Parlementaires debout ‘

The experience of the Parlementaires debout is a specifically Congolese discovery, which finds its origin at the end of the CNS. In an interesting study, Kalele-Ka-Bila defines this expression as follows: “The expression designates Zairian citizens, men and women, young people and old men, literate and illiterate, whose principal concern and activity consists, each day, to gather in various corners where newspapers are sold to discuss politics and decide on actions to carry out for improving things (...). They are called by analogy Parlementaires debout. Because, they estimate, their activity is not different from that of the deputies who sit in Parliament to defend the interests of people. That is why they call their places of meeting Parliaments. The epithet "debout" is used to simply distinguish them from traditional members of Parliament, by putting forward the fact that they have neither a room nor seats to discuss politics. They do it rather upright and in the open air (Kalele-Ka-Bila, in G Nzongola- ntalaja & Mr. C LEE, 1997: 65).

At the beginning, the phenomenon seems to have been the reaction of people in need of political expression against the embargo of power on political debates within the HCR initially and then the HCR-PT38. From its beginnings, the phenomenon had a very visible impact on the national political scene. Several political actors, considered to be unstable on account of their vagrancy in various political formations, lost their credit thanks to the actions of the members of Parlements debout. Their force primarily resided on their capacity to interpret information, to diffuse it on a large scale in order to lead people as much as possible to take an active part in the democratic process of the nation. In February 1996, the country had 11 Parlements debout, including 8 in Kinshasa (Kingasani-Masina, Ndjili, Matete, Lemba, Limete, Bongolo, Pont-Kasavubu, and Azap) and 3 in the provinces (Mbuji-Mayi in Kasai, Miabi and Kiri in Bandundu (KALELE, 19: 69). Although they did not have the same influence and the same dynamism after the seizure of power by the AFDL in May 1997, and following the years

38As the debates of the Parliament of transition were not broadcast live, the sole means which allowed the people to follow what was said and decided in their name, was newspapers. 65 of war, these Parliaments were very important in terms of broadening political participation by the diffusion of information and political debates.

2.5.2. Human rights organizations, social movements, and other civil associations

Defining democracy, Georges Nzongola argues that Democracy is a continuous process of promoting equal access to fundamental human rights and civil liberties for all (1); freedom of religion, assembly, expression, press, association, etc. (2); economic, social, and cultural rights (3); the rights of peoples, including the inalienable right to self-determination (4)39. Therefore, democracy is that social process through which people strive to expand the fundamental human rights, together with the political space necessary for promoting and defending them effectively. Central to this process is the idea that a good political order is one in which the state is capable of satisfying the material and spiritual needs of its citizens.

At the end of the CNS, one saw the proliferation of human rights organizations and other civil associations (women associations, religious associations, labor movements, etc.) which wanted from now on to play the role of watchdog for the respect of fundamental rights and freedoms of citizens, of the right of association, of opinion, and for the protection of the individuals at workplace, particularly in the field of the press. Although their actions were often limited to denounce the violations of human rights, and the abuse of power during Mobutu’s regime as well as those who succeeded to him, these movements had a very positive impact on the consolidation of certain assets of the CNS, in terms of the unconditional respect of the sacred character of the human being. Since the war of 1996, several of these civil organizations, often in collaboration with international NGOs, allowed the international Community to be aware of the drama which was taking place in the DRC and which one could qualify as a true genocide40.

Although on the one hand, these civil organizations urged people to support L.-D. Kabila in his effort to reverse the Mobutu dictatorship, it was also them, on the other hand, who encouraged the Congolese people to resist the new regime of the AFDL, which was characterized from the beginning by the

39 Georges NZONGOLA-NTALAJA, p. 12 40 Many reports mention that more than 3 million of Congolse died during the two wars of 1996 and 1998 66 violation of human rights, and the exclusion of political opposition41. Olivier Lanotte notes, in effect: “Everywhere in Zaire, even far in the villages, populations are sensitized to the democratic ideal. Thus, during the autumn 1996, whereas the democratic transition, launched six years earlier by the Marshal Mobutu, seemed to fail, the declarations of intent of L-D Kabila, spokesperson of the Alliance des Forces Démocratiques pour la Libération du Congo (Alliance of Democratic Forces for the Liberation of Congo), AFDL, to go to Gbadolite (Mobutu’s headquarters), provoked the enthusiasm of a population exhausted by a mobutist regime completely weakened” (O LANOTTE, 2003: 20).

Table 0.5. Roles of civil society as society watchdog

Organizations Possible roles

Human Rights +++ Monitoring of human rights abuses, advocacy, Democracy promotion

Women’s Association +++ Policy reform of gender equality, advocacy, democracy promotion, peace building

Media Groups +++ Monitoring, generating information, promotion of freedom of expression, democracy promotion

Religious Groups +++ Lobbying, reconciliation, mediation

Academic Groups ++ generating information, providing platforms for debates, protest (students) Labor groups ++ Policy advocacy, Mediation, strikes, protest

Notes: +++ active, organized, articulate; ++ active, visible articulate on key issues.

2.5.3. The media

The freedom of expression, opinion and thought is one of the virtues, the fundamental characteristics, of democracy. And in the economy of Claude Lefort’s thought, this virtue is of crucial importance. Without it, democracy is a meaningless expression. After the CNS, this was expressed by the formation of thousands of press organs, written and audio-visual, in order to ensure the Congolese a space where they could freely express their opinions about the organization of their society, their criticisms and viewpoints on the way in which this society should be managed and controlled. In

41 The new Kabila’s regime is characterized from its beginnings by its authoritative character, the centralization and the concentration of power by the president of the Republic, the confiscation of political space, by banning all the activities of political parties. That is why some seek to question the link between Kabila and Mobutu. Cf. E BOISSONADE, Kabila clone def Mobutu?, Paris, Moreux, 1998, and Olivier LANOTTE, 2003. 67 addition, interests groups on press issues were organized in order to ensure the protection of journalists and other people involved in the media.

2.6. Conclusion

We have argued in the above that the CNS can be understood, using the terms of Claude Lefort’s theory, as a foyer of reflection and decision which set out to inaugurate a new democratic order in Zaire; one respectful of the wide degree of openness available to the social and which gives to the people the right and power to determine the temporary forms of closure to which social indeterminacy has to be subjected in order for there to exist the necessary minimum of order and stability without which social identity and reproduction tout court would not be possible.

The CNS was one of these moments of punctuation, when the flow of history is ‘bracketed’ while ‘society’ withdraws into an attitude of self reflection and self-interrogation. This ‘pause’ is brought to an end with the putting forward of new constitutional principles. There is, in this sense, a homology between the act/event of democratic institution and democratic elections themselves, insofar as the latter also according to Lefort, involve the dissolution/reconstitution of the social bond. There are differences too, of course, and perhaps the most important of these is that electoral results can be democratically legitimated while the output of a “National Conference” cannot, or, rather, can only be retroactively legitimated (by the same body it has constituted).

Thus, while acknowledging that all founding bodies (like the CNS) are de jure ‘exceptional’ and thus self-validating, we have also shown that the CNS had its roots in the very widespread rejection of ‘Mobutism’ that had erupted all over Zaire, in all social sectors and regions. The CNS cast its net wide in terms of representativity, and allowed both its own reflections and deliberations, as well as the new order it proposed, to be constrained only by the requirements of that representativity and reflection themselves – rather than allowing some set of more or less tacit presuppositions – such as individualism – to govern the options available to the people, thus draining its ‘self-determination’ of real democratic significance.

Of course, judgments concerning whether the CNS achieved as much as ‘was possible’ will never be brought to an end. All we have tried to establish is that, on any reasonable standard, it was representative and deeply deliberative. This is enough to establish it as a ‘break-moment’ in the history of Zaire, an event we suggest is best approached using Lefort’s conceptual lens.