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Democratic Republic of Congo--2011 FDA Global Electoral Audit Report

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2011 FDA Electoral Fairness Audit of the Congolese presidential and parliamentary electoral system. …

2011 FDA Electoral Fairness Audit of the Congolese presidential and parliamentary electoral system.

FDA auditors gave the DRC an overall electoral score of 3.75%. (0% is the lowest score attainable; 50% is the minimum passing grade; 100% is the maximum score attainable.)

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  • 1. 2011 FDA Global Electoral Fairness Audit of Democratic Republic of Congo’s Presidential and Parliamentary Electoral SystemsThe Democratic Republic of Congo (DRC) received an overall electoral fairness score of3.75 percent. The scores means that the constitutional and legislative basis for Congolesedemocracy is bordering on complete unfairness. The FDA auditors reached consensus in allfour sections of electoral fairness. The only identified elements of electoral fairness were thelegislative basis for multi-political parties and freedom of voter choice. However, theseelements are canceled out by significant elements of electoral unfairness. In all four of theelectoral fairness sections, the Congolese state has shut off switches: the state can shut downmedia companies; the state can dissolve political parties; the state can dissolve politicalparties for violation of electoral finances; the state can silence voter say and expression ongrounds of public order or morality. In addition, the Congolese media ownershipconcentration laws are canceled by the lack of transparency of media ownership. TheCongolese electoral finance laws are canceled out by the lack of public transparency ofpolitical parties finances. The state uses the vague terms of public order and morality torestrict freedom of expression and assembly, media ownership, and registration of politicalparties. In the FDAs opinion, the Congolese electoral system is authoritarian within amuddle, insignificant constitutional, electoral, and media laws which appear to exist only tosatisfy international donors. Electoral Fairness Audit Completed December 5, 2011
  • 2. About the Foundation for Democratic Advancement:The Foundation for Democratic Advancement ("FDA")s mission is to advance fair andtransparent democratic processes wherever elections occur. The FDA believes that fairerelectoral systems and a more informed public will help ensure the election of candidates whotruly represent the will of the people. The FDA fulfills its mission by performing detailedelectoral audits on political candidates and parties to inform the public, objectively andimpartially, about their electoral choices. Also, the FDA audits electoral legislation in terms offairness and equity, and conducts ground level assessments of democratic processes. (For moreinformation on the FDA visit: www.democracychange.org)Purpose of Electoral Fairness Audit:The purpose of the FDA’s electoral fairness audit (the “Audit”) is to determine a grade andranking for electoral fairness in the Democratic Republic of Congo (DRC) at the presidential andparliamentary levels of government. This Audit is part of the FDA’s global audit of electoralfairness involving all countries which hold political elections. The FDAs goal is to give thecitizens of the DRC an informed, objective perspective of the fairness of the Congolese nationalelectoral system.The views in this electoral fairness audit are the views of the FDA only. The FDA’s members andvolunteers are in no way affiliated with the Congolese Independent National ElectoralCommission or any of Congolese registered/non-registered political parties. The Audit is anindependent assessment based on objectivity, transparency and non-partisanship. The FDAassumes no responsibility or liability for any errors in the calculation of its audit results orinaccuracies in its research of relevant Congolese legislation.Methodology of the Electoral Fairness Audit:The FDA uses the methodology of more reasonableness which was created by FDA founder andexecutive director, Stephen Garvey. The methodology focuses on facts themselves for fairnessand unfairness, and their comparative numerical value. To determine the correct numerical valuefor facts, FDA auditors are guided by matrices which show the numerical value of establishedfacts, and FDA scoring scales for fairness and unfairness.The FDA focuses on four key areas of electoral fairness:1) Laws and regulations on the political content of media including newspapers, broadcasters andonline media before, during, and after elections;2) Laws and regulations on the candidates’ and parties’ influence before, during and afterelections, such as national televised debates, restrictions on candidate nominations, partyregistration requirements, etc.;3) Laws and regulations on electoral finance, such as party and campaign donation limits, thirdparty spending limits etc.; and Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC
  • 3. 4) Laws and regulations on voter say before, during, and after an election. The FDA auditorsdetermine the fairness of Congolese laws and regulations for voter say in the media, at thepolling booth, through electoral finance and constitutional laws etc.The FDA audits these four areas of electoral fairness because, in our opinion, they are oftenignored or overlooked by the international community in determining electoral fairness.Moreover, these four areas cover broad aspects of the electoral process in which fairness couldbe compromised significantly. The FDA acknowledges that electoral laws and regulations maynot necessarily correspond to the implementation of those laws and regulations or the public’sresponse to them. The implementation and response could be positive or negative, in terms ofelectoral fairness. Nevertheless, laws and regulations provide the foundation for democracy,framework for the electoral system, and an indication of electoral fairness. Also, a countrysconstitutional and electoral laws are part of the reality of its democracy. A further study whichtracks the actions of mainstream media and the enforcement or non-enforcement of electorallaws and regulation, for example, would provide a more reliable overall determination ofelectoral fairness.The FDA researched current Congolese legislation, in relation to the four areas of electoralfairness being audited. Following which, the FDA audited the research results via the FDAelectoral audit team and established FDA matrices and scoring scales. The scores and the reasonsfor them are recorded.Weighting and Scoring:Overall, the FDA scoring is guided by an inherent valuation of the concepts of soundness andrelevancy. Each area of electoral fairness has a score range between 0 and 10, and each area iscounted equally. The FDA auditors allow for overlap of electoral fairness areas, due to theinterconnectedness of the areas. For example, electoral finance will be factored into the score forvoter say and candidate and party influence if it is relevant to these areas. The total averagedscore will provide an indication of the electoral fairness in the DRC.The FDA electoral audit team deliberated on the research on each area of electoral fairness, andthen attempted to reach consensus on the scores. When no consensus could be reached, theindividual scores of the team were averaged. The final score for each area must be supported bymore sound reasons and correspond to the established FDA matrices and scoring scale. There is aminimum quorum of five auditors and maximum of nine auditors. Any auditors in excess of nineact as observers. During the deliberation on each electoral fairness section, observers are givenan opportunity to share comments and/or questions. Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC
  • 4. FDA Researchers:Mr. Stephen Garvey, FDA founder and executive director, bachelor degree in Political Science(University of British Columbia) and Masters degree in Environment and Development(University of Cambridge).Mrs. Fatou NDiaye, FDA researcher, Masters degree in Economics, and citizen of Senegal.Ms. Lindsay Tetlock, FDA researcher and auditor, bachelor degree in Political Science(University of Calgary) and masters degree in Historical Studies (University of Calgary).FDA Electoral Fairness Audit Team:Chief Electoral Auditor:Mr. Stephen Garvey, FDA founder and executive director, bachelor degree in Political Science(University of British Columbia) and Masters degree in Environment and Development(University of Cambridge).Electoral Auditors:Mr. Shane Donovan, FDA volunteer and 4th year Political Science major (University of Calgary).Mr. Dale Monette, FDA director of finance and bachelor degree in Commerce (University ofSaskatchewan).Ms. Sarah Graham, FDA Volunteer and bachelor degree in International Relations (The GeorgeWashington University).Ms. Lindsay Tetlock, FDA researcher and auditor, bachelor degree in Political Science(University of Calgary) and masters degree in Historical Studies (University of Calgary).Electoral Observer:Ms. Valerie Fleish, FDA volunteer, PhD in Neuroscience and Postdoctoral Research Fellow(University of Alberta).Report Writer:Mr. Stephen Garvey, FDA founder and executive director, bachelor degree in Political Science(University of British Columbia) and Masters degree in Environment and Development(University of Cambridge).© 2011, Foundation for Democratic AdvancementAll rights reserved.Foundation for Democratic Advancement728 Northmount Drive NWPO Box 94Calgary, AlbertaCanada, T2K 1P0info@democracychange.org Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC
  • 5. Table of Contents:Political Background on the DRC 7Chapter 1: Political Content of Media 16Chapter Summary 16Research Excerpts 16Score 19Rational 19Chapter 2 Equality of Political Candidate and Party Influence 26Chapter Summary 26Research Excerpts 26Score 32Rational 32Chapter 3: Equality of Electoral Finance 38Chapter Summary 38Research Excerpts 38Score 39Rational 39Chapter 4: Equality of Voter Say 43Chapter Summary 43Research Excepts 43Score 50Rational 50Chapter 5: Overall Audit Results 56
  • 6. Chapter 6: Analysis 57Chapter 7: Conclusion 58Chapter 8: Recommendations 59References: 60Appendix: FDA Global Audit Results: 62
  • 7. Political Background of the DRCPresident Mobutu was overthrown on 17 May 1997. Subsequently, the AFDL, headed bypresident Laurent-Desire Kabila, seized power. After seizing power, Laurent-Desire Kabilarenames the country Democratic Republic of Congo (DRC) and wants to limit the influence ofUganda and Rwanda in DRC. Shortly after, he was accused of tribalism by the Congolese Rallyfor Democracy (RCD), an armed group composed of Tutsi refugees and demobilized Congolesesoldiers.President Laurent-Desire Kabila was assassinated in January 2001. His son Joseph Kabila, thencommander in chief of the ground forces, succeeded him as the head of the state.In October 2002, the new president was successful in negotiating the withdrawal of Rwandanforces occupying eastern Congo; two months later, the Pretoria Accord was signed by allremaining warring parties to end the fighting and establish a government of national unity. Atransitional government was set up in July 2003. Joseph KABILA as president and four vicepresidents represented the former government, former rebel groups, the political opposition, andcivil society. The transitional government held a successful constitutional referendum inDecember 2005 and elections for the presidency, National Assembly, and provincial legislaturesin 2006. The National Assembly was installed in September 2006 and KABILA was inauguratedpresident in December 2006. Provincial assemblies were constituted in early 2007, and electedgovernors and national senators in January 2007. The next national elections are scheduled forNovember 2011.EXECUTIVEGovernmentType: Republic; highly centralized with executive power vested in the president.Independence: June 30, 1960 (from Belgium).Chief of state: President Joseph KABILA (since 17 January 2001)Head of government: Prime Minister Adolphe MUZITO (since 10 October 2008)Cabinet: Ministers of State appointed by the presidentElections: under the new constitution the president elected by popular vote for a five-year term(eligible for a second term); elections last held on 30 July 2006 and on 29 October 2006 (next tobe held on 27 November 2011); prime minister appointed by the presidentConstitution: The DRC has had numerous constitutions, constitutional amendments, andtransitional constitutions since independence. The currently operative constitution was approvedby 84% of voters in a December 2005 referendum and officially promulgated in February 2006.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 7
  • 8. Branches:EXECUTIVE--President is head of state. The President nominates the Prime Minister, who is thehead of government, and, together with his/her Cabinet, is approved by the parliament.LEGISLATIVEThe legislature consists of a Senate (108 seats; members elected by provincial assemblies toserve five-year terms) and a National Assembly (500 seats; 61 members elected by majority votein single-member constituencies, 439 members elected by open list proportional-representationin multi-member constituencies to serve five-year terms)Elections: Senate - last held on 19 January 2007 (next to be held on 13 June 2012); NationalAssembly - last held on 30 July 2006 (next to be held on 27 November 2011)JUDICIARYConstitutional Court; Appeals Court or Cour de Cassation; Council of State; High MilitaryCourt; plus civil and military courts and tribunalsAdministrative subdivisions: Eleven provinces including the capital city, Kinshasa.THE CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF THE CONGO, 2005(Adopted by the National Assembly on May 13, 2005, and approved by the Congolesepeople by the referendum of December 18 and 19, 2005.) (Preamble and selected Articles)PREAMBLEWe, the Congolese People,United by destiny and history around the noble ideas of liberty, fraternity, solidarity, justice,peace and work;Driven by our common will to build in the heart of Africa a State under rule of law and apowerful and prosperous Nation based on real political, economic, social and culturaldemocracy;Considering that injustice and its corollaries, impunity, nepotism, regionalism, tribalism, clanrule and patronage are, due to their manifold vices, at the origin or the general decline of valuesand the ruin of the country;Affirming our determination to safeguard and consolidate national independence and unity byrespecting our positive diversities and particularities;Reaffirming our adherence and attachment to the Universal Declaration of Human Rights, theAfrican Charter of Human and Peoples Rights, the United Nations Conventions on the Right ofthe Child and the Rights of Women, particularly to the goal of equal representation of men andwomen in the institutions of the country, as well as to the international instruments relating to theFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 8
  • 9. protection and promotion of human rights;Driven by the will to see all African States united and working together with a view to promotingand consolidating African unity through the continental, regional and sub-regional organizationsin order to offer better perspectives for development and socio-economic progress to the peoplesof Africa;Committed to the promotion of mutually beneficial international cooperation and therapprochement of the peoples of the world, while at the same time respecting their respectiveidentities and the principles of sovereignty and territorial integrity of each State;Reaffirming our inalienable and immutable right to organize ourselves freely and to develop ourpolitical, economic, social and cultural life in accordance with our own genius;Conscious of our responsibilities before God, the Nation, Africa and the World;Declare to solemnly adopt this Constitution.TITLE IGENERAL PROVISIONSChapter 1The State and SovereigntySection 1The StateArticle 1The Democratic Republic of the Congo is, within its borders of 30 June 1960, a State based onthe rule of law, independent, sovereign, united and indivisible, social, democratic and secular.Its motto is “Justice-Peace-Work.”Article 2The Democratic Republic of the Congo consists of the city of Kinshasa and 25 provinces whichpossess legal personality.The distribution of powers between the State and the provinces takes place in accordance withthe provisions of Title IV of this Constitution.Article 3The provinces and the decentralized territorial entities of the Democratic Republic of the Congopossess legal personality and are managed by local authorities.They enjoy administrative freedom and managerial autonomy with regard to their economic,human, financial, and technical resources.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 9
  • 10. Article 4New provinces and territorial entities may be created by dismemberment or by reorganizationunder the conditions prescribed by the Constitution and by law.Section 2SovereigntyArticle 5National sovereignty belongs to the people. All power emanates from the people as exerciseddirectly by way of referendum or elections or indirectly though their representatives.The law determines the conditions for the organization of elections and of the referendum.Suffrage is universal, equal and secret. It is direct or indirect.Without prejudice to the provisions of Articles 72, 102 and 106 of this Constitution, allCongolese of both sexes who are over the age of eighteen and enjoy their civil and politicalrights are entitled, under the conditions prescribed by law, to vote and to stand at elections.Article 6Political pluralism is recognized in the Democratic Republic of the Congo.Every Congolese who enjoys his/her civil and political rights has the right to create a politicalparty or to become a member of a political party of his/her choice.The political parties participate in the expression of the popular will, the strengthening of thenational conscience and civic eduction. They form and exercise their activities freely whilerespecting the law, public order and morality.The political parties are obliged to respect the principles of pluralist democracy, national unityand sovereignty.The political parties my receive public funds from the State for the financing of their electoralcampaigns and other activities under the conditions defined by the law.Article 7No one may establish, in any form whatsoever, a single party on all or part of the nationalterritory.The establishment of a single party constitutes a crime of high treason punishable by law and notsubject to the statute of limitations.Article 8Political opposition is recognized in the Democratic Republic of the Congo. The rights linked toits existence, its activities and its fight for the democratic conquest of power are sacred. Theymay not be subject to limits other than those which are imposed by this Constitution and the lawon all parties and political activities.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 10
  • 11. An organic law determines the status of political opposition.Chapter 2NationalityArticle 10Congolese nationality is one and exclusive. It may not be held together with another nationality.The Congolese nationality is obtained either by origin or by individual acquisition.Of Congolese origin are all persons who belong to ethnic groups whose members and territoryformed what has become the Congo (presently the Democratic Republic of the Congo) upon itsindependence.An organic law determines the conditions for the recognition, acquisition, loss and recovery ofCongolese nationality.TITLE IIHUMAN RIGHTS, FUNDAMENTAL LIBERTIES AND THE DUTIES OF THE CITIZENAND THE STATEChapter 1Civil and Political RightsArticle 11All human beings are born free and equal in dignity and rights. However, the enjoyment ofpolitical rights is granted to Congolese [nationals] only, save for exceptions provided by the law.Article 12All Congolese are equal before the law and have the right to equal protection by the law.Article 13No Congolese person may, in matters of education or access to public functions or any othermatter, be subject to any discriminatory measure, whether it results from a statute of from ameasure of the executive, on the ground of his/her religion, family origin, social condition,residence, views or political convictions, or membership of a certain race, ethnicity, tribe,cultural or linguistic minority.Article 14The public authorities see to the elimination of all forms of discrimination against women andensure the protection and promotion of their rights.They take in all areas, and most notably in the civil, political, economic, social and culturalareas, all appropriate measure in order to endure the full realization of the potential of womanand their full participation in the development of the nation.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 11
  • 12. They take measures in order to fight all forms of violence against women in their public andprivate life.Women are entitled to equitable representation in national, provincial and local institutions.Article 15The public authorities are responsible for the elimination of sexual violence used as aninstrument in the destabilization and displacement of families.Article 16The individual is sacred. The State has an obligation to respect and protect him/her.All persons have the right to life, physical integrity and to the free development of theirpersonality, while respecting the law, public order, the rights of others and public morality.No one may be held in slavery or in a similar condition.No one may be subject to cruel, inhumane or degrading treatment.No one may be submitted to forced or compulsory labor.Article 17Individual liberty is guaranteed. It is the rule, detention the exception.No one may be prosecuted, arrested, detained or sentenced except by virtue of a law and in themanner which the latter prescribes.Any person accused of a violation of the law is presumed innocent until his/her guilt has beenproven by a final judgement.Article 22All persons have the right to freedom of thought, conscience and religion.All persons have the right to express their religion or their convictions, alone or together withothers, both in public and in private, by worship, teaching, practices, carrying out of rites and areligious way of living, subject to respect for the law, public order, morality and the rights ofothers.Article 23All persons have the right to freedom of expression.This right implies the freedom to express their opinions and convictions, in particular by speech,in print and through pictures, subject to respect for the law, public order, and morality.Article 24All persons have the right to information.The freedom of the press, the freedom of information and broadcasting by radio and television,Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 12
  • 13. written press or any other means of communication are guaranteed, subject to respect for the law,public order and the rights of others.The law determines the conditions for the exercise of these liberties.Article 25The freedom of peaceful meetings without weapons is guaranteed subject to respect for the law,public order and morality.Article 26The freedom of demonstration is guaranteed.All demonstrations on public roads or in open air oblige the organizers to inform the competentadministrative authority in writing.Chapter 2Economic, Social and Cultural RightsArticle 36Work is a sacred right and duty for every Congolese.The State guarantees the right to work, protection against unemployment and an equitable andsatisfactory pay, thus ensuring the worker as well as his/her family of a life in accordance withhuman dignity, together with all other means of social protection …Article 37The State guarantees the freedom of association.The public authorities cooperate with the associations which contribute to the social, economic,intellectual, moral and spiritual development of the population and to the education of itscitizens.Article 43All persons have the right to a school education. It is provided by national education.National education consists of public establishments and approved private establishments.The law defines the conditions for the creation and functioning of these establishments.The parents have the right to choose the way in which their children are educated.Primary education is compulsory and free in the public establishments.Article 44The eradication of illiteracy is a national duty, the fulfilment of which the Government mustelaborate a specific program.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 13
  • 14. Article 45Education is free.All persons have access to establishments of national education without discrimination ongrounds of origin, race, religion, sex, political or philosophical opinions, physical, mental, orsensorial condition in accordance with their capacities.Article 49Aged and handicapped persons have the right to special measures of protection with regard totheir physical, intellectual and moral needs.The State has the duty to promote the presence of handicapped persons in national, provincialand local institutions.An organic law determines the conditions for the application to this right.Chapter 3Collective RightsArticle 50The State protects the rights and legitimate interests of Congolese nationals inside as well asoutside the country.Subject to reciprocity, foreign nationals who are legally present in the national territory enjoy thesame rights and liberties as the Congolese, with the exception of political rights.Article 51The State has the duty to ensure and promote the peaceful and harmonious coexistence of allethnic groups of the country.It also ensures the protection and promotion of vulnerable groups and of all minorities.Article 58All the Congolese have the right to enjoy national wealth.The State has the duty to redistribute the wealth equitably and to safeguard the right todevelopment.Article 60The respect of human rights and fundamental liberties guaranteed by the Constitution isincumbent on the public authorities and all persons.Article 61In no case, not even when the state of siege or the state of emergency has been proclaimedin accordance with Articles 87 and 88 of this Constitution, is a derogation admissible fromthe following rights and fundamental principles:Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 14
  • 15. –The right to life;–The prohibition of slavery and servitude;–The principle of legality of offenses and penalties;–The right to a defense and the right to a remedy;–The prohibition of imprisonment for debt;–The freedom of thought, of conscience and religion.Chapter 4The Duties of the CitizenArticle 64All Congolese have the duty to oppose any individual or group of individuals who seize powerby force or who exercise it in violation with the provisions of this Constitution.Any attempt to overthrow the constitutional regime constitutes an offense against the nation andthe State, an offense which is not subject to the statute of limitations. It is punished in accordancewith the law.Article 85When grave circumstances constitute a present threat to the independence or the integrity of thenational territory or when they provoke the disruption of the proper functioning of theinstitutions, the President of the Republic proclaims a state or emergency or a state of siege aftercoordination with the Prime Minister and the Presidents of the two Chambers.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 15
  • 16. Chapter One: Political Content of MediaChapter one will focus on the research and audit results of Congolese laws and regulations withrespect to the political content of media, including newspapers, broadcasters and on-line media,before, during and after elections.Chapter Summary: The DRC received a score of 10 percent for the political content of media.The score means that the legislative basis for political content of the Congolese media isbordering on complete unfairness. The FDA auditors reached consensus on the score. The scoreof 10 percent reflects the theoretical fact that the Congolese citizens have an opportunity to startup and own media companies whether in the TV, radio, or press sectors. However, there are nomechanisms for the plurality of media. The Congolese media ownership concentration laws arecanceled out by the lack of public transparency of media ownership. The Congolese state has thelegal power to shut down any media company. The media code of conduct which encouragesequitable access to the media only applies to the election period of sixty days and has noenforcement and monitor mechanisms that the FDA is aware of. The Congolese state does notseparate political candidates and parties from the media which in turn weakens the objectivityand non-partisanship of media. Further, the Congolese state can restrict freedom of mediaexpression on vague grounds of public order and morality. Overall, there is no freedom of mediain the DRC, and the government always has the means to shut down media companies.Document Excerpts:The following excerpts were identified by the FDA researchers as relevant:DRC Constitution:Article 23All persons have the right to freedom of expression.This right implies the freedom to express their opinions and convictions, in particular by speech,in print and through pictures, subject to respect for the law, public order, and morality.Article 24All persons have the right to information.The freedom of the press, the freedom of information and broadcasting by radio and television,written press or any other means of communication are guaranteed, subject to respect for the law,public order and the rights of others.The law determines the conditions for the exercise of these liberties.Article 25The freedom of peaceful meetings without weapons is guaranteed subject to respect for the law,public order and morality.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 16
  • 17. Article 26The freedom of demonstration is guaranteed.All demonstrations on public roads or in open air oblige the organizers to inform the competentadministrative authority in writing.Article 212A High Council for Audiovisual Media and Communication with legal personality is established.It has the mission to guarantee and ensure the liberty and protection of the press as well as of allmeans of mass communication in respect of the laws.It supervises the respect for good practice standards with regard to the information and theequitable access of political parties, association and citizens to the official means of informationand communication.The composition, competences, organization, and operation of the High Council for AudiovisualMedia and Communication are determined by organic law.Law No. 96/002: Providing for the licensing and registration of the print and broadcast media.Article 8: Every individual has the right to freedom of opinion and of expression. By freedom ofopinion and of expression is meant the right to inform and be informed, to have ones opinions,ones sentiments and to communicate them without let or hindrance, regardless of the meansused, subject to respect for the law, for public law and order, for the rights of others and goodbehaviour.In the area of audio-visual communication, freedom is the principle and prohibition is theexception, subject to respect for the law, for public law and order, for the rights of others andgood behaviour.Article 22: Requires every media print company to submit an application for a license to theMinister of Information and Press containing the following information: - the title or name of the newspaper; - place of publication; - particulars of the owner and the director of publication; - physical address of the company - place of publication; - proof of citizenship of the head of the publication and/or the owner of the enterprise; - certificate of good morality of the applicant (obtained from the police); - the police clearance of the owner and/or the head of the publication; - documents proving that the owner or head of the publication is a journalist.Article 51: Audio-visual communication is free. Every natural person or legal entity has the rightto produce, transmit, and receive all of the products of audio-visual communication.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 17
  • 18. Article 53: Public audio-visual communication is pluralist. It cannot, under any circumstances,be monopolized for the benefit of a single opinion or a single group of individuals.Article 57: Provides that every applicant for a radio or television license submit the followinginformation: - the name of the station; - name, date and birth and the physical address of the owner and head of broadcaster; - the physical address of the company; - a copy of the police clearances of the director of programming or the head of the company; - certificate of good morality of the director of programming or the head of the company; - a license granted by the Ministry of Posts, Telephony and Telecommunication for the installation of the equipment; - the company registration number; and - a schedule of programs intended to be broadcast.Law No. 06/006: Governing the Conduct of ElectionsArticle 111: All candidates must enjoy equal time and space in the print and electronic media,and free access to the public media.Law No. 04/017, 2004: Providing for the High Authority of the Media (HAM).Organic Law No. 11/001 of 10 January 2011 on the composition, allocation and operation of theHigh Council for Audiovisual and Communication :Article 5Freedom of the press, information and emission by radio and television, written or other meansof mass communication are guaranteed subject to compliance of public order, good morals andthe rights of others.No journalist or media professional shall be harassed or in any way if he/she is in the properexercise of his profession, nor be denied access to sources of information.Article 7Without prejudice to the law on commercial companies, the share capital held legal personsand/or foreign natural can not exceed 40% of the shares in an audiovisual company, in print orelectronic media under Congolese law.Similarly, any corporation and / or physical holds more than 50% of shares in audiovisualcompany or existing press can no longer hold an equal or greater than 40% for foreigners and49% for nationals in another broadcasting, print media or electronic.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 18
  • 19. Electoral Fairness Audit Results for the Political Content of Media:Score:The FDA electoral fairness audit team reached consensus on a score of 1/10Rational for Score:The FDA researchers made some rationals bold to emphasize high relevance:1. The Constitution guarantees the freedom of expression, freedom of opinion, freedom ofspeech and freedom of the media in the DRC. Citizens are free to express their opinions andconvictions, subject to respect for the law, public order, and morality. (Source: DRCConstitution, Articles 23.)2. The state guarantees the right to information and freedom of the press, subject to respectfor the law, public order, and morality. (Source: DRC Constitution, Articles 24.)3. The state guarantees the right to peaceful meetings and demonstration, without weapons andsubject to respect for the law, public order and morality. (Source: DRC Constitution, Articles 25-26.)4. The law liberalized state-run media in 1996. The law outlined the modalities governingfreedom of the press and established media plurality, independence, and neutrality. This allowedfor a wide variety of print, radio, television, and other news sources to become available in theDRC. The law authorized every individual and legal entity to set up a media company, radiostation, or television station, subject to respect for the law, public order, morality, and respect forothers’ rights. (Source: Law No. 96/002.)5. Media ownership concentration laws do not restrict ownership of media outlets. The lawensures that all audio-visual communication is free and available to everyone and that everyindividual or legal entity has the right to produce, transmit, and receive media. Public media ispluralist and a single opinion or group of individuals cannot monopolize it for their benefit. Thisincludes political parties and political representatives. (Law No. 96/002, Article 51 and 53.)6. There is vast number of media sources and institutions available in the DRC. The Ministry ofPress and Information reported 94 Radio Stations, 45 television stations, and 201 newspaperinstitutions operating throughout the country in 2004. The top radio station is National Radio(state-owned), followed by Golfe FM (privately owned). Of the top three television stations, onlyNational Television is a public channel. And of the three most popular news agencies, onlyAgence Congolaise de Presse is state-owned. (Source: Media Sustainability Index: DemocraticRepublic of the Congo, 2009, 72; Ministry of Press and Information, Activity Report of theCommission responsible for checking the conformity of press activities, Kinshasa, January 2004,2-3.)7. The plurality of news sources in the DRC is limited to the capital and other urban centers.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 19
  • 20. Information is, and is becoming more widely available, to the marginalized rural population,however, illiteracy is rampant in the outlying provinces and rural areas (67.2%). Radiobroadcasts are the most popular and utilized form of media in these areas. (Source: MediaSustainability Index: Democratic Republic of the Congo, 2009, 76-77.)8. Media outlets can broadcast foreign media programs, subject to respect for the law,public order and morality. However, access to international media is expensive and limitedto the urban centers and the wealthy. The government monitors international news.(Source: Media Sustainability Index: Democratic Republic of the Congo, 2009, 74, 76-77.)9. Rural inhabitants make up between 50 and 60% of the population of the DRC. (Source: FDAresearcher comment based on research material.)10. Upon request, the government may subsidize private broadcast and print media companies ifhalf of their content is cultural, educational, and social. (Source: Law No. 96/002, Section 18.)11. Despite a vast number of sources, pro-opposition and pro-government positions divide themajority of media outlets, and each side only provides information that will advance thoseinterests. (Source: Media Sustainability Index: Democratic Republic of the Congo, 2009, 77.)12. Media in the DRC is relatively independent, which facilitated electoral competitionduring the 2006 campaign. However, presidential candidates, eliminating any chance forneutrality, owned the majority of radio and television stations and newspapers operating inthe DRC. (Source: International Crisis Group, “Securing Congo’s Elections: Lessons fromthe Kinshasa Showdown,” Policy Briefing Africa 42:2 (2006), 10.)13. State-run media disseminates the ruling partys viewpoint and agenda. Any news relative toopposition political movements is assigned negligible time on radio, television, and in print. Thegovernment does not enforce freedom of the press; to the contrary, it works to silence theopposition in order to satisfy its interests. (Source: Media Sustainability Index: DemocraticRepublic of the Congo, 2009, 77.)14. Political forces control media outlets, both directly and indirectly. Politicians invest inmedia not to share information or make a profit, but to help gain and maintain power andinfluence in the DRC. (Source: FDA researcher comment/assessment based on researchmaterial.)15. In 2004, the law established the High Council for Audiovisual Media and Communication(HAM) and the Constitution guaranteed it legal personality in 2005. The HAM is an independentdemocracy-supporting institution with a mandate to guarantee the liberty, neutrality, andprotection of media outlets in accordance with the law. It is the regulator of both print andbroadcasting sectors of the media. (Source: DRC Constitution, Article 212.)16. The HAM ensures equitable access of political parties, associations and citizens to theofficial means of information and communication. (Source: DRC Constitution, Article 212.)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 20
  • 21. 17. In order to prevent political manipulation of state-run media, the HAM drafted a Code ofConduct with the participation and support of various media outlets, representatives of publicinstitutions, and political party representatives. It ensures parties and candidates equitable accessto public media during election campaigns. (Source: Democratic Republic of Congo Ministry ofHuman Rights. Implementation of the African Charter on Human and Peoples Rights (Period –From July 2003 to July 2007), Kinshasa, June 2007.)18. HAM guidelines allowed presidential candidates to broadcast their campaign messages andparticipate in political debates during the campaign period. Every candidate was allocated 90minutes of radio and television airtime, allowed to take part in two debates and express theirpolitical message three times on TV, and expected to broadcast pre-recorded campaign messageswithin the legal time frame of the electoral campaign. (Source: International ObserverHandbook: Presidential and Legislative Elections DR Congo. July 2006, UNOPS: UnitedNations Office for Project Services, Kinshasa Office, 22.; Denis Kadima and DieudonnéTshiyoyo 2009, “Chapter 4: Democratic Republic of Congo” IN Denis Kadima and SusanBooysen (eds) Compendium of Elections in Southern Africa 1989-2009: 20 Years of MulitpartyDemocracy, EISA, Johannesburg, 117-118.)19. Despite efforts and official rules to govern and promote fair conduct during the electioncampaign, reports that both the public and private media violated these regulations arecommon. Political parties levelled criticism against the HAM for its inability andunwillingness to enforce guidelines and for its alleged pro-Kabila position. (Source: DenisKadima and Dieudonné Tshiyoyo 2009, “Chapter 4: Democratic Republic of Congo” InDenis Kadima and Susan Booysen (eds) Compendium of Elections in Southern Africa 1989-2009: 20 Years of Mulitparty Democracy, EISA, Johannesburg, 117-118.)20. Radio Television Nationale Congolaise (RTNC) is the state broadcaster and the NationalNews Agency (ACP) the state print media. Both are required to be independent, objective,neutral, and account for the principle of equality. The RTNC and ACP cannot be monopolized byone person or group.(Source: SADC Media Law: A Handbook for Media Practitioners vol. 3. “Acomparative overview of media laws and practice in Lesotho, Tanzania and the DemocraticRepublic of the Congo.” (Konrad Adenauer Foundation, Johannesburg, 2005), 105-149.)21. Incumbent President Kabila, his administration, and other affiliated political partners,dominate media in the DRC. The opposition must rely on private networks to get their politicalmessage across during and between campaigns. (Source: Denis Kadima and Dieudonné Tshiyoyo2009, “Chapter 4: Democratic Republic of Congo” IN Denis Kadima and Susan Booysen (eds)Compendium of Elections in Southern Africa 1989-2009: 20 Years of Mulitparty Democracy,EISA, Johannesburg, 117-118.)22. There is no body to enforce compliance with this act and no consequence for non-compliance. There are no provisions for media not controlled by the state and no provisionslimiting media ownership. (Source: SADC Media Law: A Handbook for MediaPractitioners vol. 3. “A comparative overview of media laws and practice in Lesotho,Tanzania and the Democratic Republic of the Congo.” (Konrad Adenauer Foundation,Johannesburg, 2005), 105-149.)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 21
  • 22. 23. The government has the power to temporarily shut down television or radio stations at anytime. (Source: SADC Media Law: A Handbook for Media Practitioners vol. 3. “A comparativeoverview of media laws and practice in Lesotho, Tanzania and the Democratic Republic of theCongo.” (Konrad Adenauer Foundation, Johannesburg, 2005), 115.)24. The state grants media licenses. Any person wanting to operate broadcast or print services isrequired to obtain a license from the Ministry of Information, Press, and NationalCommunication and register with the HAM. (Source: Law 96/002, Section 22.)25. The law is silent on this process. (Source: SADC Media Law: A Handbook for MediaPractitioners vol. 3. “A comparative overview of media laws and practice in Lesotho, Tanzaniaand the Democratic Republic of the Congo.” (Konrad Adenauer Foundation, Johannesburg,2005), 120, 122.)26. The law states that no more than 40% of shares in a broadcasting or print company can beowned by a foreign person or foreign company. Any person with 51% or more of shares in abroadcasting or print company is not allowed to acquire more than 49% of shares in anotherbroadcasting or print company in DRC. (Source: Law No. 04/017, Section 8, 2004.)27. The law provides for various press offenses and penalties, ranging from fines toimprisonment. (Source: Law No. 04/017.)28. Private broadcasters are responsible for programming content. Education, informationand entertainment are a required part of programming. Content must not contain materialthat is contrary to the law, the public interest, good morals and national security. Politicalissues shall be addressed with impartiality. Broadcasters cannot air political debates ordiscussion that does not conform to the law. (Source: SADC Media Law: A Handbook forMedia Practitioners vol. 3. “A comparative overview of media laws and practice in Lesotho,Tanzania and the Democratic Republic of the Congo.” (Konrad Adenauer Foundation,Johannesburg, 2005), 133-134.)29. The law provides that if a broadcaster – through speech, words, writing, script, orimage – incites the public to commit an offense, the broadcaster is liable. These offensesinclude:- to incite a member of the public to commit stealing, killing, public destruction;- to destabilize national security;- to incite members of the public to hatred, violence, ethnicity, or racism;- to commit an offense against the head of state by means mentioned above; and- incite members of the army or security services to: o discourage of members of the army and the population with the intention to endanger the nation; and o directly or indirectly, deliver to any foreign forces secret documents, information or formulae. (Source: Law No. 96/002, Article 76.)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 22
  • 23. 30. Although the Criminal Code is not directed to the media in particular, it contains prohibitionson defamatory statements and insults against other people, which affects the media directly.Penalties range from imprisonment for periods between 8 days and 5 years and/or fines from 25to 1000 FC ($2 USD). (Source: SADC Media Law: A Handbook for Media Practitioners vol. 3.“A comparative overview of media laws and practice in Lesotho, Tanzania and the DemocraticRepublic of the Congo.” (Konrad Adenauer Foundation, Johannesburg, 2005), 145.)31. It is an offense to contribute to a publication or distribute information that does not containthe actual name and address of the author or printer. The penalty upon conviction isimprisonment for up to 2 months and/or a fine of not more than 2000 FC. The penalty forcausing unrest or spreading false information likely to alarm, worry, or excite the populationagainst the authorities is imprisonment of up to a year and/or a fine of 500 FC. (Source: SADCMedia Law: A Handbook for Media Practitioners vol. 3. “A comparative overview of media lawsand practice in Lesotho, Tanzania and the Democratic Republic of the Congo.” (KonradAdenauer Foundation, Johannesburg, 2005), 145.)32. Any transgression of press laws can result in suspension of broadcasting or print mediaservices for a period no longer than 3 months. Broadcasters face fines of up to 10,000 FC if theybroadcast without being registered with HAM, use a frequency not assigned to it, or broadcastnot in accordance with technical specifications. If interference is caused to any otherbroadcaster’s signal the penalty is up to 20,000 FC. (Source: Law No. 04/017, Section 52 and57.)33. Libel and slander are the most common press offenses and imprisonment is theprincipal sentence. (Source: Law No. 04/017.)34. Anyone who commits any offense outlined by law or not directly mentioned by law aresubject to imprisonment for no more than 15 days and a fine of 2,000,000 FC [sic] if the offensedoes not require heavier punishment. (Source: Law No. 96/002, Section 81.)35. An explanation for ‘heavier punishment’ is not set out in the law. The law also states that anybroadcaster or publisher that contradicts the law, public order and good morality, will bepunished accordingly. Again, this punishment is not specified. ((Source: SADC Media Law: AHandbook for Media Practitioners vol. 3. “A comparative overview of media laws and practice inLesotho, Tanzania and the Democratic Republic of the Congo.” (Konrad Adenauer Foundation,Johannesburg, 2005), 132.)36. Legislation involving human rights protection is not consistent with constitutional provisions.Parliament has yet to align the criminal code with the UN Convention against Torture and OtherCruel, Inhuman or Degrading Punishment. (Source: Media Sustainability Index: DemocraticRepublic of the Congo, 2009, 73, 74.)37. Crimes against journalists and media outlets occur regularly. Reports of mediapersonnel being imprisoned, abused, attacked, and fired for insulting the authorities,defaming politicians, endorsing candidates other than the ruling party, are common. Cutsto radio or television signals and bans on select TV channels by the ruling government areFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 23
  • 24. common. In practice, the government determines the content of the media. (Source: MediaSustainability Index: Democratic Republic of the Congo, 2009, 73, 74.)38. Journalists and media professionals cannot be denied access to information or be intimidatedin any way when exercising their profession, provided they comply with the applicable laws.(Source: Law No. 04/017, Section 5.)39. The right to freedom of expression and opinion in the media is undermined and restrictedbecause these rights are subject to the law, public order, and rights of others and morality.(Source: FDA researcher comment/assessment based on research material.)40. There is no law that compels media owners to reveal their full identities. Notransparency of ownership means that the same person or persons that disseminate thesame information can own many stations. (Source: Media Sustainability Index: DemocraticRepublic of the Congo, 2009, 78.)41. The media do not receive funding from the government, and it is difficult to access thealready limited advertising markets. (Source: Media Sustainability Index: Democratic Republicof the Congo, 2009, 79.)42. Professional journalism practices are limited in the DRC. Not only does this sector lacktraining and an awareness of press laws, its employees are underpaid to such an extent that theycompromise ethical and professional standards to make ends meet. (Source: SADC Media Law:A Handbook for Media Practitioners vol. 3. “A comparative overview of media laws and practicein Lesotho, Tanzania and the Democratic Republic of the Congo.” (Konrad AdenauerFoundation, Johannesburg, 2005), 112-113.)43. Journalists largely disregard the ethics code designed to guide their conduct. Many areconnected to politicians and other government actors and are more concerned with promotingtheir employer than with impartial or fact-driven reporting. Rather, information reflects theinterests of the government. As a result, media content is not objective, balanced, or fair.(Source: Media Sustainability Index: Democratic Republic of the Congo, 2009, 75.)44. Freedom of the press and opinion exists in the DRC, however, journalists practice self-censorship to appease their employer and avoid harassment, abuse, and arrest. The media sectoris a target for manipulation by the government, and the government determines the content of thenews. The press often neglects social issues such as the cost of living, unemployment, education,health and taxes. The state does not allow the media to address issues related to the army,embezzlement, and corruption. (Source: Media Sustainability Index: Democratic Republic of theCongo, 2009, 76.)45. Journalistic abuse and defamation are covered in the 1996 Press Law (Article 73), theCongolese journalists Code of Ethics (Article 5) and the Criminal Code (Article 75).Defamation is thus criminalized by virtue of it being in the Criminal Code. (Source: FDAresearchers assessment of DRC Criminal Code, Press Law, and Code of Ethics.)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 24
  • 25. 46. The state requires that freedom of speech complies with public order, good morals, andthe rights of others. (Source: Organic Law No. 11/001 of 10 January 2011 on thecomposition, allocation and operation of the High Council for Audiovisual andCommunication, Article 5.)47. The state does not allow ownership of a audiovisual company in print or electronic media bya legal persons and/or foreign natural to exceed 40 percent. Any company which holds more than50 percent ownership in any media company cannot hold equal or greater than 40 percentownership in another media company for foreigners, and equal or greater than 49 percent fornationals. (Source: Organic Law No. 11/001 of 10 January 2011 on the composition, allocationand operation of the High Council for Audiovisual and Communication, Article 7.)The score of 10 percent means that the legislative basis for the political content of Congolesemedia is bordering on complete unfairness. The state has authoritarian control over theCongolese media. The state restricts freedom of expression; there is no transparency of mediaownership; the state has the legal power to shut down media companies; there is no separationbetween political elements and the media; the state controls the issuance of media licenses; thereare no enforcement and monitoring of the media code of conduct during the election period; andthere is no requirement that the state media be non-partisan. The score of 10 percent itselfreflects the theoretical right of Congolese citizens to start up and own media companies.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 25
  • 26. Chapter Two: Candidates’ and Parties’ InfluenceChapter two will focus on the research and audit results of Congolese laws and regulations withrespect to the fairness of candidates and parties’ influence before, during and after elections.Chapter Summary: The DRC received a score of 0 percent for candidates and partiesinfluence. The score means that the legislative basis for candidates and parties influence iscompletely unfair. The FDA auditors reached consensus on the score of 0 percent, and they couldnot find any overall, free standing elements of electoral fairness. Although in the DRC there is aminimal barrier of entry for political parties (i.e. 3 founding members to start a party), this iscanceled out by numerous, significant elements of electoral unfairness. Presidential candidatesmust pay the state a non-refundable amount of $50,000 USD; the Congolese per capita income isabout $300 USD. Political parties must respect the law, public order, and morality, or face beingdissolved by the state. The founders of political parties must lead a decent life with morals orface being denied founders of political parties. There is no transparency of electoral finances, andthe finance information is only available to the state. Religious and interest based political partiesare banned, in violation of fundamental democratic principles. Freedom of expression of politicalparties is within the vague limits of public order and morality. Overall, in the FDAs opinion, theCongolese state has authoritarian control over political parties.Document Excerpts:The following excerpts were identified by the FDA researchers as relevant:DRC Constitution:Article 6Political pluralism is recognized in the Democratic Republic of the Congo.Every Congolese who enjoys his/her civil and political rights has the right to create a politicalparty or to become a member of a political party of his/her choice.The political parties participate in the expression of the popular will, the strengthening of thenational conscience and civic education. They form and exercise their activities freely whilerespecting the law, public order and morality.The political parties are obliged to respect the principles of pluralist democracy, national unityand sovereignty.The political parties my receive public funds from the state for the financing of their electoralcampaigns and other activities under the conditions defined by the law.Article 7No one may establish, in any form whatsoever, a single party on all or part of the nationalterritory.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 26
  • 27. The establishment of a single party constitutes a crime of high treason punishable by law and notsubject to the statute of limitations.Article 8Political opposition is recognized in the Democratic Republic of the Congo. The rights linked toits existence, its activities and its fight for the democratic conquest of power are sacred. Theymay not be subject to limits other than those which are imposed by this Constitution and the lawon all parties and political activities.An organic law determines the status of political opposition.Article 14The public authorities see to the elimination of all forms of discrimination against women andensure the protection and promotion of their rights.They take in all areas, and most notably in the civil, political, economic, social and culturalareas, all appropriate measure in order to endure the full realization of the potential of womanand their full participation in the development of the nation.They take measures in order to fight all forms of violence against women in their public andprivate life.Women are entitled to equitable representation in national, provincial and local institutions.TITLE VIIITHE REVISION OF THE CONSTITUTIONArticle 218The right to initiate a revision of the Constitution belongs concurrently to:a) the President of the Republic;b) the Government after deliberation by the Council of Ministers;c) to either the Chambers of Parliament upon initiative by half of its members;d) to a fraction of the Congolese people, in the present case to 100.000 persons expressingthemselves by way of petition addressed to either of the two Chambers.Each of these initiatives is submitted to the National Assembly and the Senate which decide byabsolute majority of each chamber on the substance of the project, proposal or petition forrevision.The revision is only final if the project, proposal or petition is approved by referendum.However, the project, proposal or petition is not submitted to referendum if the NationalAssembly and the Senate meeting jointly as Congress approve it by a three-fifths majority oftheir members.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 27
  • 28. Article 219No revision may occur in times of war, the state of emergency or the state of siege, or during theinterim in the Presidency of the Republic or if the National Assembly and the Senate areprevented from moving freely.Article 220The republican form of the state, the principle of universal suffrage, the representative form ofgovernment, the number and length of the terms of office of the President of the Republic,the independence of the Judicial Power, the pluralism of political parties and trade unions maynot form the object of a Constitutional amendment.Any constitutional amendment having as its objective or consequence the reduction ofindividuals rights and liberties or of the prerogatives of the provinces and decentralized territorialentities is formally prohibited.TITLE IIITHE ORGANIZATION AND THE EXERCISE OF POWERChapter 1The Institutions of the RepublicArticle 69The President of the Republic is the Head of the State.He ensures the respect of the Constitution.Article 70The President of the Republic is elected by direct universal suffrage for a term of five yearswhich is renewable only once.Article 71The President of the Republic is elected by an absolute majority of the votes cast. If such amajority is not obtained on the first ballot, a second ballot takes place within a period of fifteendays.Only the two candidates who received the highest number of votes cast in the first ballot maypresent themselves in the second ballot.The candidate who obtains the highest number of votes is declared elected on the second ballot.Article 72A person may not stand as a candidate in the presidential elections, if they do not meet thefollowing requirements:–possess the Congolese nationality of origin;–be at least thirty years of age;Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 28
  • 29. –enjoy all civil and political rights;–not be subject to one of the exclusions provided for by the electoral law.Article 73The ballot for the election of the President of the Republic is scheduled by the National ElectionsCommission ninety days before the end of term of the incumbent President.Article 74Before he begins his functions, the President of the Republic takes the following oath before theConstitutional Court:“I, ________, elected President of the Democratic Republic of the Congo, solemnly swear beforethe Congolese nation:–to observe and defend the Constitution and the laws of the Republic;–to maintain the independence and integrity of the territories;–to safeguard national unity–to be guided only by the common interest and the respect of the rights of the individual;–to devote all my strength to the promotion of the general good and of peace;–to loyally fulfill, as a faithful servant of the people, the high duties that have been entrusted tome.”Article 78The President of the Republic appoints the Prime Minister from the ranks of the parliamentarymajority after consultation of the latter. He terminates the functions of the Prime Minister uponpresentation by the latter of the resignation of the Government.Article 82The President of the Republic appoints, suspends and, if necessary, dismisses, by ordinance, thejudges and public prosecutors upon proposal of the High Council of the Judiciary.Article 83The President of the Republic is the Commander-in-Chief of the Armed Forces.TITLE IVTHE PROVINCESThe Provincial InstitutionsArticle 2The Democratic Republic of the Congo consists of the city of Kinshasa and 25 provinces whichpossess legal personality.Article 175The percentage of national revenues allocated to the provinces is fixed at 40%. It is retained atthe source.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 29
  • 30. Article 197The Provincial Assembly is the deliberative body of the province. It deliberates in the areas ofcompetences reserved to the province and controls the Provincial Government as well as theprovincial and local services.They are elected by universal, direct and secret suffrage or co-opted for a renewable term of fiveyears.Without prejudice to the other provisions of this Constitution, the provisions of Articles 100, 101,102, 103, 108, and 109 are applicable mutatis mutandis to the Provincial Assemblies.Article 198The composition of the Provincial Government takes into account the provincial representation.The number of Provincial Ministers may not exceed ten.Article 226The provisions of the first paragraph of Article 2 of this Constitution will come into force withinthirty days following the effective establishment of the political institutions provided for by thisConstitution.Electoral Law:The following are ineligible presidential candidates:- persons deprived of their civil and political rights;- persons sentenced for crimes of war, crimes of genocide and crimes against humanity by an international criminal jurisdiction;- persons sentenced for bankruptcy- persons suffering from total mental incapacity certified medically during the 5 years preceding the elections;- civil servants and agents of the public administration who cannot demonstrate, on the deadline for the deposit of candidatures, that they have requested to be released from their duties;- active representatives of public or mixed enterprises who have not provided proof, on the deadline for the deposit of candidatures, of having deposited their letter of resignation;- members of the Armed Forces and of the Congolese National Police, who have not provided, on the deadline for the deposit of candidatures, proof of their accepted resignation or their retirement;- members of the CEI at all levels, including the staff.Electoral LawArticle 115: Each electoral district has the right to a number of members of the NationalAssembly equal to the result of the following operations:1.An electoral quotient is reached by dividing the number of registered voters of the DRC by thetotal number of seats to be filled in the National Assembly;Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 30
  • 31. 2.The number of seats to fill in each district is obtained by the division of the total number ofvoters registered in that district by the electoral quotient;3.If the number of seats thus allocated is inferior to the total number of seats to be filled, anadditional seat is allocated to each district which has the highest decimal with regard to thenumber of seats obtained, until the limit of 500 seats is reached;4.The number of seats to fill in each district is reached by dividing the total number of votersregistered in the district by the same electoral quotient;5.One seat is allocated to all electoral districts with a number of voters inferior to the electoralquotient;6.If the total number of seats thus allocated to the districts of the province, an additional seat isallocated to each district having reached the highest decimal with regard to the number of seatsobtained, up to the allocations of the total number of seats of the province.Law No. 04/002, 2004: Concerning the Organization and Operation of Political Parties:Article11.The founder of any political party must satisfy the following conditions:1.must be of Congolese nationality;2.must be 25 years or less;3.should enjoy his civil and political rights;4.must be in good physical and mental health and leading a decent life and morals;5.must provide justification of training up to technical diploma level or at least the equivalent, orwith the proven professional or political experience;6.must have a residence or a dwelling in the DRC;7.must never have been convicted criminally for a deliberate offence, having acquired theauthority of the res judicata, except in case of amnesty and of judicial rehabilitation.Law No. 04/002: Article 12In order to register a party, an application is made by the founding members to the Minister ofHome Affairs. The application must:1.be signed by at least three founding members2.include the party constitution signed by at least one founding member of the party;3.outline the partys platform and vision;4.include a declaration related to the assets and revenue sources the party plans to use to realizeits objectives;5.include a non-refundable administrative fee determined by the Cabinet;6.include the personal files of each founding member, containing information verifyingnationality, good health, behaviour (including a criminal record), lifestyle, and morals.DRC Constitution:Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 31
  • 32. Article 190No one may, under sentence of high treason, organize military groups, paramilitary or privatemilitias, or entertain a youth army.Article 100The Legislative power is exercised by a Parliament consisting of two chambers: the NationalAssembly and the Senate.Without prejudice to other provisions of this constitution, Parliament votes the laws. It controlsthe Government, the public companies as well as the public establishments and services.Each Chamber enjoys administrative and financial autonomy.Electoral Fairness Audit Results for Candidates and Parties Influence:Score:The FDA electoral fairness audit team reached consensus on a score of 0/10.Rational for Score:The FDA researchers made some rationals bold to emphasize high relevance:1. In 2006, the DRC held its first multi-party election in over 30 years, wherein transitionalpresident Joseph Kabila secured his position as President of the Republic. (Source: FDAresearcher comment/assessment based on research material.)2. The President is elected by direct universal suffrage by an absolute majority for a term of fiveyears that is renewable only once. If the first ballot does not produce a majority a run-off vote isrequired to take place within 15 days. (Source: DRC Constitution, Article 70, 71.)3. Presidential candidates must be of Congolese nationality, be at least 30 years old, enjoy civiland political rights, and not be subject to the exclusions provided for by electoral law. (Source:DRC Constitution, Article 72.)4. The following are ineligible presidential candidates: those deprived of their civil andpolitical rights; those sentenced for crimes of war, genocide and crimes against humanity;those sentenced for bankruptcy; those suffering from total mental incapacity certifiedmedically during the 5 years preceding the elections; civil servants, agents of publicadministration, representatives of public or mixed enterprises, and members of the ArmedForces and National Police who cannot demonstrate, on the deadline for the deposit ofcandidatures, evidence that they have requested to be released from their duties. (Source:Electoral Law.)5. Every presidential candidate must include a non-refundable $50,000 USD (46,343,000 FC)deposit with their application. The fee for parliamentary candidates is $250 USD (110,000 FC).Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 32
  • 33. Despite a national per capita income between $120 and $300 USD in 2005 (UNICEF), 33candidates presented themselves for the presidential ballot. (Source: SITO: States in TransitionObservatory. Election Watch/DRC, January –July 2011, “Measuring the Democratic Republic ofthe Congo’s Electoral Environment According to the SADC Guidelines Governing DemocraticElections,” www.statesintransition.org.)6. The government includes the President, Vice-presidents, Ministers and Vice-ministers.Parliament is composed of the National Assembly – 500 representatives elected by voters for arenewable mandate of 5 years – and the Senate – 120 members representing the provinces,elected by the Provincial Assemblies by proportional representation. Parliament controls theGovernment and public companies, establishments, and services. The judicial power isindependent, exerted by the Supreme Court of Justice, the Courts of Appeal, and the civil andmilitary courts. (Source: DRC Constitution, Article 100.)7. President Kabila and his party, the Peoples Party for Reconstruction and Democracy (PPRD),did not secure enough votes to form a majority in the National Assembly (PPRD 111/500).Therefore, Kabila formed an alliance of 30 parties and 27 independent personalities representingall of the provinces. This coalition, the Alliance of the Presidential Majority (AMP), commands asignificant majority in parliament, dominating the National Assembly, the Senate, and most ofthe Provincial Assemblies. (Source: Herbert F. Weiss, “Voting for Change in the DRC,” Journalof Democracy 18:2 (April 2007), 151.)8. Eleven political parties were present in all provinces. Only Kabilas PPRD was present in all169 districts. (Source: International Observer Handbook: Presidential and Legislative ElectionsDR Congo. July 2006, UNOPS: United Nations Office for Project Services, Kinshasa Office,17.)9. Candidates are presented by political parties, political groups, or present themselves asindependents. (Source: DRC Constitution, Article 101.)10. The DRC bans the formation of a one-party state. The Constitution recognizes andguarantees political pluralism. Every Congolese who enjoys civil and political rights has the rightto create or participate in the political party of their choice. (Source: DRC Constitution, Article6.)11. Political parties and associations can be established freely and without discrimination,subject to respect for the law, public order and morality. Political opposition, its right toform, organize and operate in a democratic framework is outlined in the Constitution andprotected by law. (Source: DRC Constitution, Article 6, 8; Law No. 04/002, 2004.)12. Political parties are defined as an association of Congolese nationals sharing a similarideology and social viewpoint, with the intention of obtaining and exercising state powerdemocratically and within the confines of the law through the election process. Parties maynot reflect the special interests of a particular family, tribe, ethnic group, province, race,religion, language, gender or other origin, or discriminate on these grounds. (Source: Law04/002 (5a).)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 33
  • 34. 13. Parties are required to abide by the electoral process, demonstrate a commitment todemocracy, national unity and sovereignty, respect the republican and secular character of thestate, and refrain from violence to gain or maintain power. (Source: Law 04/002 2004, 5 b)-e).)14. Political parties are not permitted to take on a military character. The leader of the party whoviolates these provisions is subject to prosecution in terms of security laws. (Source: DenisKadima and Dieudonné Tshiyoyo 2009, “Chapter 4: Democratic Republic of Congo” IN DenisKadima and Susan Booysen (eds) Compendium of Elections in Southern Africa 1989-2009: 20Years of Mulitparty Democracy, EISA, Johannesburg, 118-119.)15. The founder of any political party must be Congolese; be at least 25 old; enjoy theircivil and political rights; be in good physical and mental health; lead a decent life withmorals; provide justification of training up to technical diploma level or at least theequivalent, or prove professional or political experience; reside in the DRC; never havebeen criminally convicted for a deliberate offense, except in case of amnesty and of judicialrehabilitation. (Source: Law No. 04/002.)16. To register a party, an application is made by the founding members to the Minister of HomeAffairs. The application must: be signed by at least 3 founding members; include the partyconstitution; outline the partys platform and vision; include a declaration related to the assetsand revenue sources it plans to use to realize its objectives; include a non-refundableadministrative fee determined by the Cabinet; include the personal files of each foundingmember, containing information verifying nationality, good health, behaviour (including acriminal record), lifestyle, and morals. (Source: Law No. 04/002, Article 12).17. Over 250 parties registered for the 2006 election; however, very few had popular support orinfluence. Most were small parties with no ideological platform, created to promote the limitedinterests of the founding individual. Most presidential candidates running against Kabila did nothave the money, organization, or international backing to compete with the PPRD. One popularopposition leader boycotted the election, while another was imprisoned. Overall, theeffectiveness of the opposition during the election was limited. (Source: Muzong Kodi, “Dreamof a New Dawn,” The World Today 62:3 (March 2006), 12.)18. With so many parties active in government (70 in the National Assembly, 26 in the Senate),the opposition is inconsistent and essentially immobilized. Too much diversity presents too manyopinions and loose coalitions to make parliament efficient. Smaller parties chose to join acoalition, the AMP, not based on ideological compatibility, but in order to access the resourcesand influence of the PPRD. (Source: Theodore Trefon, “Administrative Obstacles to Reform inthe Democratic Republic of Congo,” International Review of Administrative Sciences 7:702(2010), 708.; International Observer Handbook: Presidential and Legislative Elections DRCongo. July 2006, UNOPS: United Nations Office for Project Services, Kinshasa Office, 18.)19. Political parties and independent candidates are entitled to register a complaint about theelection with the CEI within 3 days after the announcement of results. The Supreme Courthandles these disputes at no charge and announces its decision within 7 days. (Source:International Observer Handbook: Presidential and Legislative Elections DR Congo. July 2006,Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 34
  • 35. UNOPS: United Nations Office for Project Services, Kinshasa Office, 59.)20. Issue-based campaigning was virtually absent during the election period. Many personalizedpolitical parties did not play a role in the inter-election period. (Source: FDA researchercomment/assessment based on research material.)21. Four women presented themselves on the presidential ballot and approximately 200 out ofthe 9,000 legislative candidates were women. (Source: International Observer Handbook:Presidential and Legislative Elections DR Congo. July 2006, UNOPS: United Nations Office forProject Services, Kinshasa Office, 13, 17.)22. The Constitution requires the state to ensure the equality of gender representation at alllevels, however, no legal measures were adopted to give effect to this. The three main partiesagreed on quotas for female representation during the election (30%) but did not implementthem. (Source: SITO: States in Transition Observatory. Election Watch/DRC, January –July2011, “Measuring the Democratic Republic of the Congo’s Electoral Environment According tothe SADC Guidelines Governing Democratic Elections,” www.statesintransition.org.)23. Despite various institutional attempts to give women a greater role in government, they arevastly under-represented. Women account for less than 10% of the National Assembly andjudiciary and hold only 3 seats in the Senate. (Source: Ministry of Women’s Affairs and theFamily, National Report of the Democratic Republic of the Congo on the review and evaluationof the Beijing Plan of Action +10, Kinshasa, Feb 2004, 12.)24. Corruption and patronage in all levels of government pervade the political system in theDRC. In 1994, Transparency International rated the DRC as the worlds 12th most corrupt state.The government is not accountable to anyone and information sharing both within and betweenadministrations is limited and guarded. (Source: Edward B. Rackley, “Democratic Republic ofthe Congo: Undoing Government by Predation,” Disasters 30:4 (2006), 421. 425.)25. The PPRD is accused of physically intimidating members of government and withholdingsalaries in order to silence the opposition and maintain dominance in parliament. Reports ofgovernment repression are widespread and involve intimidation, illegal detention, and in somecases, murder. Ergo, the opposition plays a negligible role in politics. (Source: Stephanie A.Matti, “The Democratic Republic of the Congo? Corruption, Patronage, and CompetitiveAuthoritarianism is the DRC,” Africa Today 56:4 (Summer 2010), 47.)26. Many argue that an over-representation of cabinet members loyal to Kabila demonstrates thatpatronage, not political ideology, dictates the allocation of key positions within theadministration. Further, officials in both the judicial and legislative branches lack the resourcesand finances necessary to provide for their own needs, leaving them open to bribery andcorruption. (Source: Mvemba Phezo Dizolele, “The Mirage of Democracy in the DRC,” Journalof Democracy 21:3, (July 2010), 156.)27. These practices undermine the transparent, democratic institutions established in theConstitution. (Source: FDA researcher comment/assessment based on research material.)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 35
  • 36. 28. Article 220 outlines elements of the Constitution that are not subject to amendment. Thisarticle does not allow the revision of any clause related to democracy, including – the republicanform of the state, the principle of universal suffrage, the length and limits of presidentialterms, the independence of the judiciary, or any act that reduces the prerogatives of theprovinces and decentralized entities. (Source: DRC Constitution, Article 220).29. In 2011, President Kabila and his advisers proposed a revision to the 2005 Constitution thatwas fundamentally undemocratic. The revisions would extend term limits, replace two-roundelections with a one-round election, allow the president to preside over the judicial High Council,and delay the decentralization process intended to economically empower the provinces. Despitea boycott by the main opposition parties, it was passed during a session by parliament less thantwo weeks later. (Source: Mvemba Phezo Dizolele, “The Mirage of Democracy in the DRC,”Journal of Democracy 21:3, (July 2010), 148.)30. The revisions favour the incumbent president before the scheduled 2011 elections. It reducescitizens role in the electoral process by allowing Kabila to avoid decisive second round.Elections will be postponed until 2012 if a simple majority is not reached in the first round.(Source: Thierry Vircoulon, “Unfair and Dangerous Elections,” Peace Review 23:2 (2011), 201-202.)31. Kabila changed a fundamental part of the constitution without broad public consultation orshared consensus with the political elite in order to consolidate his power and extend his rule.The Constitution provides guidelines for provincial reconfiguration, decentralization, and anincrease in the provincial share of national wealth. It would reduce the governments influenceand power in the outlying areas and increase provincial autonomy. Kabila has not implementedthese changes. (Source: Mvemba Phezo Dizolele, “The Mirage of Democracy in the DRC,”Journal of Democracy 21:3, (July 2010), 154-155.)32. Public media in the DRC is open to all political leanings. The law provides for equaldistribution of airtime to all political parties and candidates. (Source: Democratic Republic ofCongo Ministry of Human Rights. Implementation of the African Charter on Human and PeoplesRights (Period – From July 2003 to July 2007), Kinshasa, June 2007. )33. The Law guarantees presidential candidates equitable access to the media equal access, time,and space to the public media by law during electoral campaigns. (Source: Electoral Law,Articles 33-36.)2011 Constitutional Amendments:34. Presidential elections have only one round of voting. The winning presidential candidateonly needs a simple majority and a minority of the votes cast. (Source: Congo Planet,November 28, 2011.)35. The president has the power to dissolve elected provincial parliaments. (Source: CongoPlanet, November 28, 2011.)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 36
  • 37. 36. The president has the power to call referendums. (Source: Congo Planet, November 28,2011.)37. The Office of the Prosecutor General operates under the authority of the Ministry of Justice.(Source: Congo Planet, November 28, 2011.)38. The split of the country into 26 provinces is delayed. (Source: Congo Planet, November 28,2011.)The score of 0 percent means that legislative basis for candidates and parties influence iscompletely unfair. The FDA auditors could find no overall, free standing element of electoralfairness. The auditors considered the minimal barrier entry for political parties, realizing thateven this element is canceled out by restrictions on which individuals and groups can formpolitical parties and the lack of public transparency of electoral finances and with the informationonly available to the state. Within the state controlled environment, the state has the legal powerto dissolve any political party on vague grounds of violating public order or morality.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 37
  • 38. Chapter Three: Electoral FinanceChapter three will focus on the research and audit results of Congolese laws and regulationswith respect to the fairness of Congolese laws and regulations with respect to electoral finance.Chapter Summary: The DRC received a score of 0 percent for electoral finance. The scoremeans that the Congolese legislative basis for electoral finance is completely unfair. The FDAauditors reached consensus on the score of 0 percent, and they could not find any overall, freestanding element of electoral fairness. Although the DRC bans campaign funds from foreignstates, this element of fairness is canceled out by the lack of public transparency of electoralfinances. The state may dissolve a political party for violating the electoral finance laws. Also,there is an excessive, non-refundable fee of $50,000 USD for presidential candidates. This feefavors wealthy candidates and candidates connected to significant financial sources. Further, theCongolese electoral system has no caps on domestic electoral donations and no restrictionscorporate donations. Overall, with electoral finances only transparent to the Congolese state, anyelements of electoral fairness are canceled out.Document Excerpts:The following excerpts were identified by the FDA researchers as relevant:DRC Constitution:Article 99Before their accession to office and on the expiration thereof, the President of the Republic andthe members of Government are obliged to submit to the Constitutional Court a writtendeclaration of their family fortune, listing their movable assets, including company shares andinterests, obligations, other assets, bank accounts, their immovable assets, including undevelopedlands, woods, plantations and agricultural lands, mines and other immovable property, byindicating the relevant title.The family fortune includes the property of the spouse in accordance with the relevant rules onmatrimonial property, of the children who have not yet reached maturity and of the children,even those who have already attained maturity, for which the couple is responsible.The Constitutional Court transmits this declaration to the fiscal administration.Lacking such declaration, within a delay of thirty days, the relevant person is deemed to haveresigned from office.In case of lack of declaration, of a fraudulent declaration or of unjustified enrichment, the matteris referred within thirty days from the expiry of the functions to the Constitutional Court or theCourt of Cassation.Article 171Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 38
  • 39. The finances of the central authority and the provinces are separate.Article 174Taxes can only be established by law.The contribution to the public offices is a duty of every individual living in the DemocraticRepublic of the Congo.Article 175The percentage of national revenues allocated to the provinces is fixed at 40%. It is retained atthe source.Article 109The National Deputies and Senators have the right to move without restriction or obstacleswithin the national territory and to leave it.They are entitles to an equitable indemnity which ensures their independence and their dignity. Itis provided for in the Budget Law.They are entitled to final indemnity which equals six months of allowances.The details of the implementation of the preceding paragraph as well as the other rights of themembers of Parliament are regulated by the internal regulations of each Chamber.Electoral Fairness Audit Results for Congolese Electoral Finance:Score:The FDA electoral fairness audit team reached consensus on a score of 0/10.Rational for Score:The FDA researchers made some rationals bold to emphasize high relevance:1. In 2010, the DRC had a GDP per capita of $300 USD. In 2006, 71% of the population fellbelow the poverty line. The highest 10% of the population had an estimated 34.7% of nationalwealth while the lowest 10% held 2.3%. (Source: CIA: Factbook.)2. Before their accession to office, the President and members of Government must submitto the Constitutional Court a declaration of their family income and assets. The statementmust include movable and immovable assets, company shares and interests, financialobligations, bank accounts, developed and undeveloped lands, and all other financialresources. It must include the property and assets of their spouse and the children forwhich they are responsible. The Court will transmit this declaration to the fiscaladministration of the state. (Source: DRC Constitution, Article 99.)3. The state considers him/her to have resigned from office if the declaration is not receivedFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 39
  • 40. within 30 days. (Source: DRC Constitution, Article 99.)4. Public funding of political parties and independent candidates is not available in theDRC. The law regulates party funding and finances. Neither public resources nor the state isobliged to fund political parties. Political parties are entitled to receive public funds from thestate for the financing of their electoral campaigns; however, the law does not mandate publicfunding for political parties. (Source: Law No. 04/002, 2004.)5. The law prohibits the use of state resources or personnel for the benefit of any political party.It maintains that state funding is possible, and that eventual legislative subvention (financialassistance) from the state is a legitimate source of party revenue. However, no such legislationhas materialized. (Law No. 04/002, Article 22, Article 25; Denis Kadima and DieudonnéTshiyoyo 2009, “Chapter 4: Democratic Republic of Congo” IN Denis Kadima and SusanBooysen (eds) Compendium of Elections in Southern Africa 1989-2009: 20 Years of MulitpartyDemocracy, EISA, Johannesburg, 118-119.)6. The transitional government did not allocate public funding to political parties or independentcandidates, nor did it regulate party funding and election campaign finance. (Denis Kadima andDieudonné Tshiyoyo 2009, “Chapter 4: Democratic Republic of Congo” IN Denis Kadima andSusan Booysen (eds) Compendium of Elections in Southern Africa 1989-2009: 20 Years ofMulitparty Democracy, EISA, Johannesburg, 118-119.)7. Funding from foreign states not allowed. (Source: Law No. 04/002, Section 24.)8. Parties must disclose property ownership to the Minister of Home Affairs, as well as anydonations or bequests. (Source: Law No. 04/002, Article 23.)9. Parties must submit annual financial accounts to the Minister of Home Affairs (Source: LawNo. 04/002, Article 21.)10. Political parties can raise funds from membership fees, donations and bequests,revenues generated through events and publications, and fixed and movable propertytransactions. (Source: Law No. 04/002 2004, Article 22.)11. The DRC does not permit any funding from foreign states and parties who breach thisprovision are liable to dissolution (Source: Law No. 04/002, Section 24.)12. Political parties must disclose property ownership to the Minister of Home Affairs, aswell as any donations or bequests. They must specify the origin, nature, value and sourceof said donations, which must not be criminal or foreign in origin. (Source: Law No.04/002 2004, Article 20 and Article 23.)13. Each political party must submit financial accounts and an annual declaration to theDepartment of Home Affairs of the names, professions and residency of its centraladministrators to demonstrate conformity to the provisions on revenue sources. If it fails tosubmit this declaration, the Minister will suspend the party. (Source: Law No. 04/002,Article 21.)14. National Deputies and Senators are entitled to equitable compensation throughout their termFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 40
  • 41. in order to ensure their independence and dignity. The Constitution does not specify the amountand details of its implementation. (Source: DRC Constitution, Article 109.)15. Political parties create administrative disruptions in order to solicit bribes from thegovernment as a means of party financing. (Source: SITO: States in Transition Observatory.Election Watch/DRC, January –July 2011, “Measuring the Democratic Republic of the Congo’sElectoral Environment According to the SADC Guidelines Governing Democratic Elections,”www.statesintransition.org.)16. Small parties do not have adequate funding to finance election campaigns or partyactivities. Major parties utilized political dispensation to accrue finances for thefunctioning of their offices. President Kabila nominated government representatives forprofitable positions in institutions, businesses and industries associated with thegovernment and under its indirect control to gain financial resources for the PPRD. Theseofficials contributed between 10 and 20% of their wages to party funds, giving the PPRDan advantage over smaller, less influential parties. (Denis Kadima and Dieudonné Tshiyoyo2009, “Chapter 4: Democratic Republic of Congo” IN Denis Kadima and Susan Booysen(eds) Compendium of Elections in Southern Africa 1989-2009: 20 Years of MulitpartyDemocracy, EISA, Johannesburg, 118-119.)17. The international diplomatic and business community hoped for an election that wouldprovide the DRC with a government that had an element of popular legitimacy. The DRC did nothave the funds or infrastructure to support such a campaign and required foreign assistance forits success. The international community provided training, materials, education, security, ruralincorporation programs and transportation for the 2006 elections. (Source: Mvemba PhezoDizolele, “The Mirage of Democracy in the DRC,” Journal of Democracy 21:3, (July 2010),150-151.)18. The international community, in particular the UN and the EU, have provided an immenseamount of financial, political, economic, and security support to post-conflict DRC(approximately $10 billion USD from 2002-2006). Democratic reform, including multi-partyelections, was a requisite for mobilizing this assistance. (Source: Stephanie A. Matti, “TheDemocratic Republic of the Congo? Corruption, Patronage, and Competitive Authoritarianism isthe DRC,” Africa Today 56:4 (Summer 2010), 52.)The score of 0 percent means that the legislative basis for the DRCs electoral finance iscompletely unfair. The FDA auditors researched consensus on the score, and were unable to findany overall, free-standing elements of electoral fairness. The electoral finances of politicalcandidates and parties are only transparent to the state, and the state has the legal power todissolve political parties for violation of electoral finance laws. The $50,000 USD fee forpresidential candidates is excessive, and unfairly favors wealthy candidates and candidates withaccess significant financial sources. Also, the lack of a cap on domestic donations and norestrictions on corporation donations favors the wealthy segment of Congolese society, in whichabout 70 percent of the people live in poverty. (In 2006, 71 percent of the Congolese populationfell below the poverty line, and the highest 10 percent of the population has an estimated 34.7percent of the countrys wealth, and the lowest 10 percent has 2.3 percent of the countrys wealth.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 41
  • 42. Source: CIA: Factbook.)Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 42
  • 43. Chapter Four: Voter SayChapter four will focus on the research and audit results of Congolese laws and regulations withrespect to the fairness of voter say laws and regulations before, during and after an election.Chapter Summary: The DRC received a score of .5 percent for voter say. The score means thatthe legislative basis for voter say is bordering on complete unfairness. The FDA auditors reachedconsensus on the score of .5 percent. The Congolese state restricts freedom of expression andassembly through vague concepts of public order and morality. The states media laws are biasedto the pro-government political candidates and parties. Electoral finances are only transparent tothe state and favor the wealthy sections of Congolese society. The state has no electoralmechanisms which support women representation in the National Assembly or Senate. The .5percent score derives from the fact that voters can vote for opposition political parties. Althoughthis voter choice is limited by restrictions on registered political parties such as a ban on religiousbased political parties and political parties which do not respect the states law, public order ormorality. Also, the $50,000 non-refundable fee for presidential candidates restricts the number ofpresidential candidates who would run if the fee were more in line with the $300 USD per capitaincome, and therefore, voter say in terms electoral choice is impacted negatively. Overall, voterswho are opposed to pro-government political parties have a significant electoral disadvantage insay as compared to voters who support pro-government political parties, and voters supportbanned political candidates and parties have a severe electoral disadvantage.Document Excerpts:The following excerpts were identified by the FDA researchers as relevant:DRC Constitution:Article 5National sovereignty belongs to the people. All power emanates from the people as exerciseddirectly by way of referendum or elections or indirectly though their representatives.The law determines the conditions for the organization of elections and of the referendum.Suffrage is universal, equal and secret. It is direct or indirect.Without prejudice to the provisions of Articles 72, 102 and 106 of this Constitution, allCongolese of both sexes who are over the age of eighteen and enjoy their civil and politicalrights are entitled, under the conditions prescribed by law, to vote and to stand at elections.Article 10Congolese nationality is one and exclusive. It may not be held together with another nationality.The Congolese nationality is obtained either by origin or by individual acquisition.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 43
  • 44. Of Congolese origin are all persons who belong to ethnic groups whose members and territoryformed what has become the Congo (presently the Democratic Republic of the Congo) upon itsindependence.An organic law determines the conditions for the recognition, acquisition, loss and recovery ofCongolese nationality.TITLE IIHUMAN RIGHTS, FUNDAMENTAL LIBERTIES AND THE DUTIES OF THE CITIZENAND THE STATEChapter 1Civil and Political RightsArticle 11All human beings are born free and equal in dignity and rights. However, the enjoyment ofpolitical rights is granted to Congolese [nationals] only, save for exceptions provided by the law.Article 12All Congolese are equal before the law and have the right to equal protection by the law.Article 13No Congolese person may, in matters of education or access to public functions or any othermatter, be subject to any discriminatory measure, whether it results from a statute of from ameasure of the executive, on the ground of his/her religion, family origin, social condition,residence, views or political convictions, or membership of a certain race, ethnicity, tribe,cultural or linguistic minority.Article 14The public authorities see to the elimination of all forms of discrimination against women andensure the protection and promotion of their rights.They take in all areas, and most notably in the civil, political, economic, social and culturalareas, all appropriate measure in order to endure the full realization of the potential of womanand their full participation in the development of the nation.They take measures in order to fight all forms of violence against women in their public andprivate life.Women are entitled to equitable representation in national, provincial and local institutions.Article 15The public authorities are responsible for the elimination of sexual violence used as aninstrument in the destabilization and displacement of families.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 44
  • 45. Article 16The individual is sacred. The State has an obligation to respect and protect him/her.All persons have the right to life, physical integrity and to the free development of theirpersonality, while respecting the law, public order, the rights of others and public morality.No one may be held in slavery or in a similar condition.No one may be subject to cruel, inhumane or degrading treatment.No one may be submitted to forced or compulsory labor.Article 17Individual liberty is guaranteed. It is the rule, detention the exception.No one may be prosecuted, arrested, detained or sentenced except by virtue of a law and in themanner which the latter prescribes.Any person accused of a violation of the law is presumed innocent until his/her guilt has beenproven by a final judgement.Article 22All persons have the right to freedom of thought, conscience and religion.All persons have the right to express their religion or their convictions, alone or together withothers, both in public and in private, by worship, teaching, practices, carrying out of rites and areligious way of living, subject to respect for the law, public order, morality and the rights ofothers.All demonstrations on public roads or in open air oblige the organizers to inform Article 13No Congolese person may, in matters of education or access to public functions or any othermatter, be subject to any discriminatory measure, whether it results from a statute of from ameasure of the executive, on the ground of his/her religion, family origin, social condition,residence, views or political convictions, or membership of a certain race, ethnicity, tribe,cultural or linguistic minority.Article 23All persons have the right to freedom of expression.This right implies the freedom to express their opinions and convictions, in particular by speech,in print and through pictures, subject to respect for the law, public order, and morality.Article 24All persons have the right to information.The freedom of the press, the freedom of information and broadcasting by radio and television,Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 45
  • 46. written press or any other means of communication are guaranteed, subject to respect for the law,public order and the rights of others.The law determines the conditions for the exercise of these liberties.Article 25The freedom of peaceful meetings without weapons is guaranteed subject to respect for the law,public order and morality.Article 26The freedom of demonstration is guaranteed.TITLE VIDEMOCRACY SUPPORTING INSTITUTIONSChapter 1The Independent National Electoral CommissionArticle 211An Independent National Electoral Commission with legal personality is established.The Independent National Electoral Commission is charged with the organization of the electoralprocess, in particular the registration of voters, the maintenance of the electoral roll, votingoperations, the counting of votes and any referendum.It ensures the regularity of the electoral and referendum process.An organic law establishes the organization and the operation of the Independent NationalElectoral Commission.Article 73The ballot for the election of the President of the Republic is scheduled by the National ElectionsCommission ninety days before the end of term of the incumbent President.Law No. 04/009, 2004: Organization, Attribution and Operation of the Independent ElectoralCommission, June 5, 2004.Articles 1-4: Anticipates the independence of the CEI.Article 7: Lists its competences: - Develop and implement its rules of procedures - Organize and manage pre-electoral and electoral activities, namely; o Identification of Congolese nationals, o Registration of voters, o Release of voters lists, o Polling operations,Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 46
  • 47. o Counting operations, o Announcement of preliminary results, o Contracting procedures for electoral operations. - Help develop the legal framework of the election - Set up the electoral timeframe - Popularize in French and other national languages the Electoral law - Carry out a voters’ education programme and coordinate the civic education campaign - Train the electoral staff - Develop a Code of Ethics - Monitor the correct implementation of the Electoral Law - Monitor the legality of electoral campaigning activity - Announce preliminary election results and refer to the Supreme Court for the announcement of final results.Law No. 04/028, 2004: Identification and Enrolment of Voters in the Democratic Republic of theCongo.Articles 5 and 6, 21-23: Registration Centers:The Office of the Registration Centre has the power to vouch for the identity and nationality ofthe people that apply to be registered at their stations. The CEI determines the number ofregistration centers depending on the estimated voter population and the geographic area.Registration centers are established at schools or other private or public places, which are at thedisposal of the CEI for the duration of the electoral process. Registration canters cannot beestablished in places of worship, political party offices, trade union offices, non-governmentaloffices, bars, police stations, military camps, military academies and schools.Special arrangements can be made by the CEI for the following categories of people who want toregister; prisoners who have not lost their civil rights, displaced people, the sick, pregnantwomen, people living with disability and the elderly.Articles 7, 8, and 10 – Requirements for registration: Voters must register at the registrationcenter where their main residence is. If a person living outside the district where their mainresidency is they can elect to register at the registration center where they temporarily reside.To register you must be: - A Congolese citizen - 18 years or older on the date of closure of identification and registration - Able to register in person - Able to enjoy the civil and political rights of the DRC - In possession of one of the following: o A certificate of nationality or a document attesting that you have applied for a certificate of nationality o An identity document o A national passport o A national driving licenceFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 47
  • 48. o A national pension book o A pupil or student card o A service cardArticle 9 – Disqualifications for identification and registration: The following categories ofpeople cannot register: - Those with “full mental disability” - People legally deprived of their civil and political rights - The military and police on dutyArticle 5: The conditions for vote eligibility: - To be of Congolese nationality - To be over 18 years of age on the date of closure of the identification and registration operations - To be within the territory of the DRC on the day of the elections - Not to present one of the cases of exclusion foreseen in article 7.Article 7: Persons presenting on the day of the elections one of the cases of exclusion may notparticipate in the vote: - Persons suffering from medically certified total mental incapacity; - Persons permanently deprived of their civil and political rights by a final legal decision; - The members of the Congolese Armed Forces and the National Police; - Persons no registered in the electoral rolls; - Persons who are in a foreign country.Article 28: Checking the electoral roll: Each segment of the electoral roll is published and postedat the head office of the registration centers for people to check if they are on the electoral rolland if their details have been accurately captured.Article 38-39: Updating and maintenance of the electoral roll: The electoral rolls are updatedwhen: - A citizen reaches the voting age of 18 years - A citizen recovers their electoral rights - A registered citizen moves, works in another district, is ill or diesLaw No. 04/028, Chapter 4: Unlawful conductThe Act provides for a number of actions that may result in a fine and prison sentence. Thefollowing are unlawful acts: - Identification under a false name of quality - Hiding a reason why they do not qualify for registration - Fraudulent registration - Intending to register more than once - Entering a registration center with a firearm (except the armed forces or the police) - Bringing drugs or alcohol into a registration center - Giving false testimony or submitting a false document to verify the information about aFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 48
  • 49. third party - Damaging or unlawfully replacing a voter card - Divulging private and confidential information - Refusing to provide the information required for identification and enrolment - Offering, receiving or promising money, values, good, favours or other advantages to falsify information (bribery) - Making false declarations or using threats or violence or intimidationLaw No. 06/006: Governs the conduct of elections.DRC Constitution:Article 182The National Police is charged with public security, the security of persons and goods, themaintenance and restoration of public order as well as the special protection of the highauthorities.Article 187The Armed Forces consist of the land forces, air forces, naval forces and their assistanceservices.They have the mission to defend the integrity of the national territory and the borders. Under theconditions prescribed by law, they take part, in times of peace, in the economic, social andcultural development as well as the protection of persons and their goods.Article 188The Armed Forces are republican. They are at the service of the entire Nation.No one may, under sentence of high treason, abuse them for their own purposes.They are apolitical and subject to civil authority.Article 190No one may, under sentence of high treason, organize military groups, paramilitary or privatemilitias, or entertain a youth army.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 49
  • 50. Electoral Fairness Audit Results for Voter Say:Score:The FDA electoral fairness audit team reached consensus on a score of .5/10.Rational for Score:The FDA researchers made some rationals bold to emphasize high relevance:1. National sovereignty belongs to the people. All power emanates from the people as exerciseddirectly by way of referendum or elections or indirectly though their representatives. Suffrage isuniversal, equal and secret. Every Congolese man or woman over the age of 18 who enjoys civiland political rights is entitled to vote and to stand at elections. (Source: DRC Constitution,Article 5).2. The Constitution guarantees the right to freedom of expression, freedom to expressopinions and convictions, and freedom of demonstration subject to respect for the law,public order and morality. The law ensures freedom of the press and the right toinformation. (Source: DRC Constitution, Articles 23-26.)3. Organizers of public events must register with local authorities in advance. Authorities candeny the request, in writing, within 5 days of notification. Unregistered protests or meetings canexpect intervention by the National Police. (Source: SITO: States in Transition Observatory.Election Watch/DRC, January –July 2011, “Measuring the Democratic Republic of the Congo’sElectoral Environment According to the SADC Guidelines Governing Democratic Elections,”www.statesintransition.org.)4. In 2004, the law established the Independent Electoral Commission (CEI) and the Constitutiongave it legal personality in 2005. The CEI is a democracy-supporting institution created tooversee the organization, regularity, and functioning of the 2006 election. It is responsible for theorganization of the electoral process, including voter registration, maintenance of voter rolls,voting operations, vote counting, the announcement of provisional results, and the conduct ofreferendums. Its mission is to guarantee neutrality, impartiality, and transparency in all aspects ofthe election process. A member of civil society and Commissioners nominated by politicalparties chair the CEI. (Source: DRC Constitution, Article 211; Law No. 04/009, 2004.)5. The CEI drafted a Code of Conduct that governed the campaign process and requiredmembers of the CEI to endorse morality, responsibility, transparency, objectivity, and to respecthuman dignity and democratic values. Political parties signed the Code of Conduct in August2005. (Source: International Observer Handbook: Presidential and Legislative Elections DRCongo. July 2006, UNOPS: United Nations Office for Project Services, Kinshasa Office, 27.)6. In July 2010, Kabila presented the Independent National Electoral Commission (CENI) as areplacement for the CEI. It has the same duties and responsibilities as the CEI; however, the lawenacting the CENI eliminates the stipulation for civil society participation. (Source: SITO: StatesFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 50
  • 51. in Transition Observatory. Election Watch/DRC, January –July 2011, “Measuring the DemocraticRepublic of the Congo’s Electoral Environment According to the SADC Guidelines GoverningDemocratic Elections,” www.statesintransition.org.)7. Some in parliament argued that the absence of civil society representatives was a play byKabila and the PPRD to silence the critics and compromise neutrality during the electionprocess. (Source: Theodore Trefon, “Administrative Obstacles to Reform in the DemocraticRepublic of Congo,” International Review of Administrative Sciences 7:702 (2010), 709-710.)8. Voter identification and registration takes place concurrently at registration centres in thepresence of national and international observers and party agents approved by the CEI.Registration is a civic duty and compulsory for all nationals over 18 years old. (Source: Law No.04/028, Articles 5, 6, 21-23.)9. The CEI makes special arrangements to accommodate prisoners who have not lost theircivil rights, displaced people, the sick, pregnant women, people living with disability andthe elderly who want to register. (Source: Law No. 04/028, Articles 5, 6, 21-23.)10. The Presidential ballot lists all 33 candidates in alphabetical order. The National Assemblyballot lists all candidates running in one constituency in alphabetical order. The ballot paper mustindicate it is a ballot, reserve space for the initials of the President of the polling station, provideon the front the photos of the candidates, and if necessary, the colours, logos, and emblemsallowing the voter to choose. (Source: International Observer Handbook: Presidential andLegislative Elections DR Congo. July 2006, UNOPS: United Nations Office for Project Services,Kinshasa Office, 33.)11. Voters must register at the center where their main residence is. To register you must be aCongolese citizen, at least 18 years old, able to register in person, enjoy civil and political rights,possess some form of identification. (Source: Law No. 04/028, Articles 7, 8, 9.)12. To vote you must be of Congolese nationality, be at least 18 years old, be in the DRC on theday of the elections, and not present one of the cases of exclusion. (Source: Electoral Law,Article 5.)13. Nationality is established by origin and by acquisition. (Source: Law No. 04/24, 2004.)14. Voting excludes the following persons: those suffering from medically certified totalmental incapacity; those permanently deprived of their civil and political rights, membersof the Armed Forces and the National Police, those not registered and those who are not inthe DRC. (Source: Electoral Law, Article 7.)15. The electoral roll is published and posted at the head office of registration centers for peopleto review and verify if they are on the electoral roll and if their information is recordedaccurately. (Source: Law No. 04/028, Article 8.)16. The electoral roll is updated when a citizen reaches the age of majority, a citizen recoversFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 51
  • 52. their civil and political rights, a citizen moves, becomes ill or dies. (Source: Law No. 04/028,Articles 38-39.)17. Registration centers are established at schools or other private or public places, but cannot beestablished in places of worship, political party offices, trade union offices, non-governmentaloffices, bars, police stations, military camps, military academies and schools. (Source: Law No.04/028, Articles 5, 6, 21-23.)18. CEI officials take fingerprints and photographs and issue a voter’s card, which also functionsas an identity document. (Source: EISA Election Update 2006: Democratic Republic of theCongo, 1, 10.)19. Anyone who considers that the identification and registration process has deprivedthem may appeal, within seven days, in writing or by registered declaration to thePresident of the registration centre. (Source: Law No. 04/028, Article 40-44.)20. Under the identification and registration act, the following acts may result in a fine and/orprison: providing a false name, fraudulent registration, not disclosing a reason they do notqualify for registration, entering a registration center with a firearm, drugs or alcohol, givingfalse testimony about a third party, unlawfully replacing a voter card, bribery, making falsestatements or using threats, violence or intimidation. (Source: Law No. 04/028, Chapter 4.)21. Despite a very costly registration process and logistical difficulties, the CEI registered 25million people – roughly 90% of eligible voters – for the 2006 election with relatively fewproblems. (Source: Mvemba Phezo Dizolele, “The Mirage of Democracy in the DRC,” Journalof Democracy 21:3, (July 2010), 151.)22. Opposition parties alleged that the CEI with issued voter cards in the names of deceased andfictional persons, children and foreigners. (Source: SITO: States in Transition Observatory.Election Watch/DRC, January –July 2011, “Measuring the Democratic Republic of the Congo’sElectoral Environment According to the SADC Guidelines Governing Democratic Elections,”www.statesintransition.org.)23. National and international observers, religious organizations, electoral education and humanrights NGOs, trade unions, women’s associations, youth, and academic associations combinedefforts with the CEI to deliver election materials to polling stations, collect and count ballots, andsupervise voting procedures at over 50,000 polling centers. (Source: Herbert F. Weiss, “Votingfor Change in the DRC,” Journal of Democracy 18:2 (April 2007), 140.)24. Supervision was concentrated in the urban centers and easily accessible villages. (Source:FDA researcher comment/assessment based on research findings.)25. Access to polling stations is limited to CEI staff, the Election Operations Bureau, the votersassigned to the polling station, accredited party witnesses, accredited observers, accreditedjournalists and persons formally authorised by the President of the polling station. The NationalPolice and armed forces cannot be present in or around a polling station or intervene in theFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 52
  • 53. voting process without the authorization of the President of the polling station. (Source:International Observer Handbook: Presidential and Legislative Elections DR Congo. July 2006,UNOPS: United Nations Office for Project Services, Kinshasa Office, 39.)26. Counting takes place at the polling stations immediately after closing. Party agents,candidates representatives, journalists, observers and witnesses chosen among voters may bepresent. (Source: Law No. 06/006, Article 62-63.)27. The presiding officer posts results outside the polling station and relays them to thecompilation centre where they are checked and aggregated. The CEI ratifies the results andposts them outside the compilation centre. (Source: Law No. 06/006, Article 70.)28. The CEI hears conflicts and disputes about the electoral process and results within 3 days ofthe announcement of the results. Complaints are heard by at least three judges in the threevarious courts. (Source: Law No. 06/006, Articles 71, 73-76.)29. Domestic and foreign monitors and observers are accredited. Monitors and observers mustsubmit applications at least 15 days prior to an election. (Source: Law No. 06/006, Articles 42-45.)30. Few sources report rebel attacks around registration areas. (Source: SITO: States inTransition Observatory. Election Watch/DRC, January –July 2011, “Measuring the DemocraticRepublic of the Congo’s Electoral Environment According to the SADC Guidelines GoverningDemocratic Elections,” www.statesintransition.org.)31. The National Police is responsible for public security, maintaining public order, andprotecting the national territories and its borders. They are apolitical and not to be used byanyone for their own purposes. The Constitution does not permit anyone to organize militarygroups, private militias, or youth armies. (Source: DRC Constitution, Articles 182, 187, 188,190.)32. The state does not have the resources or incentive to control its vast territory, which has leftsome areas ungoverned and susceptible to rebel army and militia control. The President ignoresthis behaviour almost as a mode of governance in areas where he is less influential. (Source:Edward B. Rackley, “Democratic Republic of the Congo: Undoing Government by Predation,”Disasters 30:4 (2006), 420.)33. The voting process was organized, orderly, controlled and well attended. In the first round,Kabila did not reach the required majority, forcing a runoff vote. Turnout was impressive at 70percent during the first round and 65 percent during the runoff vote. The vast majority chose tovote in the second round where Kabila won with 58% of the vote. (Source: Herbert F. Weiss,“Voting for Change in the DRC,” Journal of Democracy 18:2 (April 2007), 139, 144.)34. Voters chose from nearly 10,000 candidates to fill the National Assembly. Of the 500 seats inthe National Assembly, 111 went to Kabila’s PPRD, 64 to the Movement for the Liberation ofCongo, and 34 to the Unified Lumumbist Party. 67 smaller parties made up the remainder.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 53
  • 54. National and international observers declared the elections competitive, free and fair. (Source:Stephanie A. Matti, “The Democratic Republic of the Congo? Corruption, Patronage, andCompetitive Authoritarianism is the DRC,” Africa Today 56:4 (Summer 2010), 46.)35. Nearly 14,000 candidates competed for the 690 available seats in the eleven ProvincialAssemblies. (Source: Herbert F. Weiss, “Voting for Change in the DRC,” Journal of Democracy18:2 (April 2007), 139-140.)36. Regional groups, not ethnic groups, voted similarly, using their ballots to make a politicalstatement against the faction that ruled them during civil war in the 1990s. (Source: Herbert F.Weiss, “Voting for Change in the DRC,” Journal of Democracy 18:2 (April 2007), 139, 143.)37. The DRC holds concurrent Presidential and Parliamentary elections every five years.The campaigning period begins at most 60 days before election day and ends 24 hoursbefore opening the poll. The electoral campaign opens 24 hours after the CEI publishes thefinal list of candidates. (Source: Electoral Law, Article 28.)38. The CEI schedules the presidential ballot 90 before the end of term of the incumbentPresident. (Source: DRC Constitution, Article 73.)39. When the campaign is over, candidates and their representatives cannot distributemanifestos, circulars or propaganda documents. They must take down all posters andpropaganda displayed within 100 meters of the polling centre. They cannot wear images,colours or logos of political parties or political groups at the polling station. (Source:International Observer Handbook: Presidential and Legislative Elections DR Congo. July2006, UNOPS: United Nations Office for Project Services, Kinshasa Office, 27.)40. Geographical constituencies for both the National and Provincial Assembly elections arecalled territories. The DRC has 189 such territories. The share of National Assembly seatsallocated to each territory depends on the number of voters registered there. In many rural areas,low population concentrations and low registration percentages resulted in nearly a third of theterritories to have only one seat. (Source: Herbert F. Weiss, “Voting for Change in the DRC,”Journal of Democracy 18:2 (April 2007), 142.)41. Voters can select only one candidate. In territories with more than one seat, “any individualon a party list who received more votes than were required for election would automatically havehis or her “surplus” votes redistributed to the next most successful candidate on his or her list.Independents could not form lists and hence could not benefit from this rule. As a result, someparty candidates beat independents despite having gained fewer votes than their non-partyrivals.” (Source: Herbert F. Weiss, “Voting for Change in the DRC,” Journal of Democracy 18:2(April 2007), 142.)42. In 2005, the DRC held a referendum on the new constitution and over 15 million voters –67% voter turnout – participated. The majority knew little about its content; however, almost85% approved the Constitution. President Kabila signed it into law in February 2006. (Source:Mvemba Phezo Dizolele, “The Mirage of Democracy in the DRC,” Journal of Democracy 21:3,Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 54
  • 55. (July 2010), 149.)43. Many argue that the 2011 elections will be less democratic than the last. The Constitutionalrevision reduces the citizens’ role in the electoral process. Financial difficulties have affected thevoter registration process in several outlying areas, reducing the number of voting centers andforcing many to postpone or suppress registration. Stations will be concentrated in large citiesand those within the immediate vicinity, limiting the voice of the rural population who will haveto travel to vote. In addition, the state has not planned a civic education campaign or a specificsecurity-training program for this election as it had in 2006. (Source: Thierry Vircoulon, “Unfairand Dangerous Elections,” Peace Review 23:2 (2011), 202-203.)44. Four women presented themselves on the presidential ballot and approximately 200 out ofthe 9,000 legislative candidates were women. (Source: International Observer Handbook:Presidential and Legislative Elections DR Congo. July 2006, UNOPS: United Nations Office forProject Services, Kinshasa Office, 13, 17.)45. The Constitution requires the state to ensure the equality of gender representation at alllevels, however, no legal measures were adopted to give effect to this. The three mainparties agreed on quotas for female representation during the election (30%) but did notimplement them. (Source: SITO: States in Transition Observatory. Election Watch/DRC,January –July 2011, “Measuring the Democratic Republic of the Congo’s ElectoralEnvironment According to the SADC Guidelines Governing Democratic Elections,”www.statesintransition.org.)46. Despite various institutional attempts to give women a greater role in government, they arevastly under-represented. Women account for less than 10% of the National Assembly andjudiciary and hold only 3 seats in the Senate. (Source: Ministry of Women’s Affairs and theFamily, National Report of the Democratic Republic of the Congo on the review and evaluationof the Beijing Plan of Action +10, Kinshasa, Feb 2004, 12.)The score of .5 percent means that the legislative basis for voter say is bordering on completeunfairness. The FDA auditors reached consensus on the score. The .5 percent reflects the fact thatCongolese voters can vote for opposition political candidates and parties. However, electoralchoice is limited by the state ban on religious and interest based political parties, and the stateban on political parties which do not respect the vague concepts of public order and morality.Also, voter freedom of expression is restricted by the vague concepts of public order andmorality. In terms of the electoral system overall, the government has sole access to politicalparties finances and an unfair control over the political content of media. Overall, voters whooppose pro-government political parties have a significant electoral disadvantage to voters whosupport pro-government political parties, and voters who support banned political parties have asevere electoral disadvantage.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 55
  • 56. Chapter Five: Audit ResultsChapter five will set out the FDA’s scores for each of the areas of the Congolese electoral systemas set out above.1. Research and audit results for the fairness of Congolese laws and regulations on the politicalcontent of media including newspapers, broadcasters, online media, before, during, and afterelections.1/102. Research and audit results for the fairness of Congolese Laws and regulations on candidatesand parties influence before, during and after elections.0/103. Research and audit results for the fairness of Congolese laws and regulations on electoralfinance.0/104. Research and audit results for the fairness of Congolese laws and regulations on voter saybefore, during, and after an election..5/10Total score: 3.75 percentFoundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 56
  • 57. Chapter Six: AnalysisChapter six will provide a brief analysis of the FDA’s findingsThe DRC received an overall score of 3.75 percent for electoral fairness. The score means thatthe constitutional and legislative basis for Congolese democracy is bordering on completeunfairness. The FDA auditors could find 3.75 percent of free-standing elements electoral fairnessout of 100 percent. With reference to the FDA scoring scale, 3.75 percent equates to anunacceptable failing grade: (F) unacceptable laws and regulations for a country (i.e. numerousmajor deficiencies in most if not all of the following: laws and regulations of the political contentof media (including broadcasters and the press), candidate and party influence, electoralfinances, and voter influence.) (Grade less than 50%). The lower the grade, the more electoralfairness deficiencies there will be.In terms of the FDA Global Electoral Fairness Audit and African countries audited so far, Tunisia(under Ben Ali) received 10 percent (F) and Cameroon received 2.5 percent. So the DRCs scoreof 3.75 percent is similar to Tunisia and Cameroon. In terms of Middle Eastern countries, theDRC fairs slightly better:Yemen (under Saleh) 1.25% (F)Bahrain 0% (F)Egypt (under Mubarak) 0% (F)Jordan 0% (F)Iran 0% (F)Libya (under Gaddafi) 0% (F)Saudi Arabia 0% (F)Syria (under Bashar al-Assad) 0% (F)However, all of the African and Middle Eastern countries audited so far are either bordering oncomplete electoral unfairness or have complete electoral unfairness.Similar to Cameroon with 207 registered political parties in 2007 (Source: Bibussia Tande, June27, 2007), the DRC has many registered political parties. In 2006, the DRC had 276 registeredpolitical parties. (Source: DRC Ministry of Internal Affairs.) Yet, the FDA audit resultsdemonstrate that a multi-party system on paper does not necessarily translate into a healthydemocracy.In all four audit sections, the DRC has major electoral deficiencies. Most notably is the DRCsshut off switches for the media, political parties, and citizens. The shut off switch is the vagueconcepts of public order and morality, which all Congolese citizens and organizations mustadhere to. In addition, political parties electoral finances are only transparent to the Congolesegovernment.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 57
  • 58. Chapter Seven: ConclusionChapter seven will provide a summary of the FDA’s findings.Despite the multi-party aspect of Congolese democracy, the DRC is an authoritarian statebecause of the pervasive controls the Congolese government has over freedom of expression andassembly, electoral finances, political party formation, and the media industry.The DRC lacks political and social stability because the government has the legal means tosilence any citizen, journalist, and organization for non-adherence to the vague concepts ofpublic order and morality.Ironically, the international donors of Congolese democracy which largely stem from Europe andNorth America stipulate that the DRC have a multi-party system, but many of these counties donot have one. For examples, as established in the FDA electoral fairness reports, the Americanfederal democracy is a legislated two-party system (in violation of fundamental democraticprinciples), the Canadian federal democracy is a legislated three-party system (i.e. only a fewparties have reasonable chance of forming government), and the Spanish democracy is alegislated two-party system (i.e. only two parties have a reasonable chance of forminggovernment).The failure of Congolese democracy likely stems from foreign interference in which democracyis being imposed from the outside through the offer of financial incentives. Consequently, thecurrent Congolese democracy is not inherent to the Congolese people, and its constitutional lawand electoral legislation are a muddle of conflicting ideas and agendas.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 58
  • 59. Chapter Eight: RecommendationsChapter eight will set out the FDA’s recommendations on how the DRC can improve its electoralfairness score and thereby its electoral fairness.The Congolese people as a whole need to reconcile the DRCs direction and goals. To continueon the path of foreign implantation of democracy will cause instability and distrust. The FDAbelieves that democracy starts and ends with the people of a society. Democracy is not somethingthat can be implanted like a seed in a field. Either the people of nation embrace democracy fromwithin or they do not. To artificial implant democracy like in Afghanistan or the DRC will onlycreate a structure of democracy.Perhaps educating the Congolese people democracy and support the civil sector may assist in thedevelopment of democracy. But to bribe the Congolese government into implementingdemocracy reform and a multi-party system will fail because it is a top down and externalapproach.Ultimately, the people of the DRC need to decide what kind of political system they wish to existin. Therefore, the FDA recommends a national Congolese referendum on this issue, and maybeeven a series, and conducted with the highest standards and integrity. Only by identifying thewill of the Congolese people and implementing it can Congolese citizens as individuals and as awhole reach their potential.Foundation for Democratic Advancement | 2011 FDA Electoral Fairness Audit of the DRC Page | 59
  • 60. References:CONGO’S ELECTIONS: MAKING OR BREAKING THE PEACE,Africa Report, N°108 – 27 April 2006.The Constitution of the Democratic Republic of the Congo, 2005.Democratic Republic of Congo Ministry of Human Rights. Implementation of the AfricanCharter on Human and Peoples Rights (Period – From July 2003 to July 2007), Kinshasa, June2007.EISA Election Update 2006: Democratic Republic of the Congo.International Observer Handbook: Presidential and Legislative Elections DR Congo. July 2006,UNOPS: United Nations Office for Project Services, Kinshasa Office, 1-66.International Crisis Group, “Securing Congo’s Elections: Lessons from the KinshasaShowdown,” Policy Briefing Africa 42:2 (2006), 10.Media Sustainability Index: Democratic Republic of the Congo, 2009, 71-81.Ministry of Press and Information, Activity Report of the Commission responsible for checkingthe conformity of press activities, Kinshasa, January 2004, 2-3.Ministry of Women’s Affairs and the Family, National Report of the Democratic Republic of theCongo on the review and evaluation of the Beijing Plan of Action +10, Kinshasa, Feb 2004, 12.SADC Media Law: A Handbook for Media Practitioners vol. 3. “A comparative overview ofmedia laws and practice in Lesotho, Tanzania and the Democratic Republic of the Congo.”(Konrad Adenauer Foundation, Johannesburg, 2005), 105-149.SITO: States in Transition Observatory. Election Watch/DRC, January –July 2011, “Measuringthe Democratic Republic of the Congo’s Electoral Environment According to the SADCGuidelines Governing Democratic Elections,” www.statesintransition.org.Bisbussia, Tarde. “Cameroon: Why So Many Political Parties (207).” June 37, 2007.Dizolele, Mvemba Phezo. “The Mirage of Democracy in the DRC.” Journal of Democracy 21:3,(July 2010), 143-157.Kadima, Denis and Dieudonné Tshiyoyo. “Chapter 4: Democratic Republic of Congo.” InCompendium of Elections in Southern Africa 1989-2009: 20 Years of Mulitparty Democracy,Eds. Denis Kadima and Susan Booysen. Johannesburg, EISA, 2009, 117-119.Kodi, Muzong. “Dream of a New Dawn.” The World Today 62:3 (March 2006), 12-14.
  • 61. Matti, Stephanie A. “The Democratic Republic of the Congo? Corruption, Patronage, andCompetitive Authoritarianism is the DRC.” Africa Today 56:4 (Summer 2010), 42-61.“Parliament Approves Constitutional Amendments”. Congo Planet, November 28, 2011.Rackley, Edward B. “Democratic Republic of the Congo: Undoing Government by Predation.”Disasters 30:4 (2006), 417-432.Trefon, Theodore. “Administrative Obstacles to Reform in the Democratic Republic of Congo.”International Review of Administrative Sciences 7:702 (2010), 702-722.Vircoulon, Thierry. “Unfair and Dangerous Elections.” Peace Review 23:2 (2011), 199-204.Weiss, Herbert F. “Voting for Change in the DRC.” Journal of Democracy 18:2 (April 2007),138-151.Electoral Law Democratic Republic of the Congo:1996 Media Law Relative to the Freedom of ExpressionOrganic Law No. 11/001 of 10 January 2011 on the composition, allocation and operation of theHigh Council for Audiovisual and CommunicationLaw No. 04/002, March 15, 2004: Concerning the Organization and Operations of PoliticalParties.Law No. 04/009, 2004: Governs the Structure and Functioning of the Independent ElectoralCommission.Law No. 04/024, November 12, 2004: Congolese Nationality.Law No. 04/028, December 24, 2004: Identification and Enrolment of Voters in the DemocraticRepublic of the Congo.Law No. 06/006, March 2006: Governs the Conduct of Elections.
  • 62. Appendix:The FDAs global electoral fairness audit results as of December 5, 2011:
  • 63. FDA Global Electoral Fairness Audit Results Overall Electoral Fairness Audit Scores <-- failing range|passing range --> 0% 20% 40% 60% 80% 100% France Venezuela Bolivia NorwayNew Zealand Spain Finland Lebanon Iraq Denmark Russia Sweden ArgentinaUnited States Canada Azerbaijan Afghanistan Mexico Tunisia DRC Cameroon Yemen Bahrain Egypt Iran Jordan Libya Saudi Arabia Syria ©2011 Foundation for Democratic Advancement
  • 64. FDA Global Electoral Fairness Audit Results Laws and regulations on the fairness of political content of the media and broadcasters before, during, and after an election <-- failing range | passing range --> 0% 20% 40% 60% 80% 100% Russia Venezuela France Bolivia Norway Lebanon Spain Afghanistan Iraq Azerbaijan Denmark Finland SwedenUnited States Canada Argentina Tunisia DRCNew Zealand Yemen Bahrain Cameroon Egypt Iran Jordan Libya Mexico Saudi Arabia Syria ©2011 Foundation for Democratic Advancement
  • 65. FDA Global Electoral Fairness Audit Results Laws and regulations on the fairness of candidate and political party influence before, during, and after an election <-- failing range | passing range --> 0% 20% 40% 60% 80% 100% France VenezuelaNew Zealand Bolivia Norway Spain Finland Lebanon SwedenUnited States Iraq Azerbaijan Afghanistan Argentina Denmark Russia Canada Mexico Bahrian Cameroon DRC Egypt Iran Jordan Libya Saudi Arabia Syria Tunisia Yemen ©2011 Foundation for Democratic Advancement
  • 66. FDA Global Electoral Fairness Audit Results Laws and regulations on the fairness of electoral (campaign) finance <-- failing range | passing range --> 0% 20% 40% 60% 80% 100% France Venezuela BoliviaNew Zealand Finland Norway Argentina Denmark Lebanon Sweden Tunisia Azerbaijan Spain Cameroon Canada MexicoUnited States Afghanistan Bahrain DRC Egypt Iran Iraq Jordan Libya Russia Saudi Arabia Syria Yemen ©2011 Foundation for Democratic Advancement
  • 67. FDA Global Electoral Fairness Audit Results Laws and regulations on the fairness of voter influence before, during, and after an election <-- failing range | passing range --> 0% 20% 40% 60% 80% 100% France Bolivia Venezuela Argentina Iraq Mexico Spain Canada Denmark FinlandNew ZealandUnited States Sweden Lebanon Norway Russia Afghanistan Azerbaijan DRC Bahrain Cameroon Egypt Iran Jordan Libya Saudi Arabia Syria Tunisia Yemen ©2011 Foundation for Democratic Advancement