The world has been watching the Democratic Republic of the Congo (DRC) since its presidential election in 2018. That election and inauguration of President Felix Tshisekedi marked the country’s first peaceful transition of power since independence in 1960. Observers from both inside and outside the country cast the election and Tshisekedi’s victory as historic, surprising, and controversial, yet the election still marked a critical juncture for the country and its people. Post-election analysis begs the question: did the inauguration of Tshisekedi mark the beginning of a new era? Or did it signal that the country’s legitimacy crisis, in which the vast majority of Congolese citizens view the government and judicial system as marked by corruption, would continue?
The midpoint of Tshisekedi’s first term in office provides an opportunity to reflect on these questions. To understand what Tshisekedi’s leadership means for democracy, justice, and peace in the DRC requires decolonizing the dominant narrative about the country. Too often, the narrative about Congolese political and legal problems takes a western-centric approach. This approach isolates the authoritarianism and violence of current ruling elites from the colonial legacies in which it is rooted. Tshisekedi’s presidency should not be analyzed as a singular or static opportunity for the country to move toward a more meaningful democracy. Instead, his presidency should be analyzed as one point along the country’s struggle for liberation from its colonial legacy.
Why A Decolonised Approach is Needed
Almost 60 years after the DRC gained independence, the 2018 election presented the DRC with a chance to break from decades of kleptocratic rule, political crises, and violence that linked the country’s colonial history to the present. Skeptics, however, quickly cast the election as corrupt and a lost opportunity. This perspective argues that the election’s disputed outcome contributed to the DRC’s ongoing political crisis by shoring up political rule by elites and “rob[bing]” the more progressive public of their calls for radical change. Pragmatists, on the other hand, viewed the election as a way to achieve short-term security goals while gradually strengthening the rule of law and political institutions. They consider the election, despite its lack of democratic transparency and protections, a measured success because former president Joseph Kabila left office without wide scale conflict. This skepticism-pragmatism dichotomy promotes an all-or-nothing understanding of the political economy and governance of the DRC. Such an understanding is overly simplistic and detached from the country’s complex postcolonial reality.
This oversimplified and exaggerated accounting is not new to analysis of the DRC. Critical observers of the country’s political crises and conflicts have long pointed out how reductive discourses — shaped by colonial and postcolonial imaginaries – shape the narrative. Reductive discourses treat contemporary problems as isolated and necessarily lead to superficial understandings. As a result, past international humanitarian and military interventions have focused on technical solutions that fail to grapple with the underlying political and historical roots of the country’s problems.
A similar problem exists with oversimplified analyses of the country’s 2018 election. A decolonized approach is required to understand the impact of the election and Tshisekedi’s presidency. Analysis that is grounded in the country’s postcolonial context affords recognition of both the successes and shortcomings of the 2018 presidential election and Tshisekedi’s initial years in power. This contextualized approach also provides a more nuanced account of the country’s present conditions and opportunities moving forward.
Demands to decolonize the narrative about the DRC’s struggle for political change and peace — as in other African countries — have been reignited by the worldwide spread of the Black Lives Matter movement. The discussion about the DRC’s present political landscape and ongoing journey towards liberation must take account of the country’s colonial exploitation and how it’s legacy continues to shape current political and legal struggles.
Colonial Legacy
The DRC has struggled with recurrent political crises and violence since the country gained independence on June 30, 1960. Over the past six decades, the country’s attempt to recover from the violent colonial rule of King Leopold II of Belgium and later the Belgian government has been thwarted by a succession of wars, kleptocratic rule, humanitarian emergencies, regional instability, and rampant poverty. As a result the country has been plagued by long-term violence and instability.
A source and outcome of this instability is the country’s failure to establish legitimate legal and political institutions after colonial rule. The interaction between law and political practice has perpetuated a legitimacy crisis. In theory, the country’s Constitution (adopted in 2006) provides a framework that sets out a clear separation of powers and establishes a democratic system of governance rooted in the power of the people. In reality, however, day-to-day governance practices are not transparent or accountable to the Congolese public — but, instead, are shaped by the dynamic relationship between the rule of law and political strategy. As a result, the voices of ordinary Congolese continue to be excluded and silenced.
Yet against the backdrop of violence and instability, the Congolese population has continually organized and struggled to reach true peace and emancipation. It is the Congolese people’s enduring struggle for change that helped finally usher the presidential election in 2018.
2018 Presidential Elections
When Tshisekedi came to power in January 2019, it was unclear whether his ascension signaled the start of a new era or merely a new face for the old guard. While some saw the transfer of power as signaling a new opportunity for the country to advance democracy and human rights, others were less optimistic.
This measured hope was not surprising. The path to this historic political moment was tumultuous as ever. The country teetered between political violence and inspired civil resistance for over two years preceding the election. Kabila (2001-2019) had signaled his intention to stay in power beyond the constitutional two-term limit for years leading up to the 2016 expiration of his term in office. Using a combination of legal and political maneuvers, Kabila pursued a constitutional “glissement” (slide), so it was troubling, but not surprising, when the Independent National Electoral Commission (CENI) announced in 2016 that elections would not be held that year. Kabila continued to cling to power and postponed elections for two years.
As Kabila clung to power, violence escalated and the public’s loss of faith in the government deepened. During this political gridlock, the Catholic Church, which holds significant moral and governing authority, was a primary organizer of negotiation and opposition. Finally, in August 2018 Kabila agreed to step down and allow elections to proceed. Kabila’s public statements of accession remained in contrast to his power moves behind the scenes. The celebration and hope for free and fair elections was quickly snuffed out by an election marred by irregularities. When Tshisekedi unexpectedly won the election over Martin Fayulu, an outspoken critic of Kabila who reportedly earned a majority of the votes according to leaked results, many Congolese suspected they had participated in a fait accompli.
Despite these election problems, the political transition provided reason for both hope and doubt about the advancement of democracy and human rights in the DRC. On one hand, the long-awaited election left large segments of Congolese society with the conclusion that the election was rigged. This conclusion poses concerns for short-term and long-term stability. On the other hand, the fact that Kabila was unable to carry out his constitutional coup symbolized an achievement of the pro-democracy organization by civil society groups. By leaving office, albeit reluctantly, Kabila demonstrated a strained respect for the Constitution. This marked a potential turning point — from kleptocratic authoritarian rule towards democratization. The election of Tshisekedi also demonstrated the ongoing negotiation between legitimacy and concentrated authority. This dynamic interaction between law and politics — rooted in the country’s colonial history — shapes the challenges Tshisekedi’s government faces to establish political stability and peace.
Moving Ahead: Prioritizing Justice is Key
Strengthening the judicial system and the rule of law must be a central priority for moving ahead. This priority is important for the ongoing struggle to break free from the country’s colonial legacy of impunity and violence. Today, the majority of Congolese view the government and judicial system as marked by rampant corruption. The weak judiciary drives a culture of impunity that perpetuates cycles of violence and human rights abuses and undermines the rule of law. As a result, citizens are left to struggle for survival in a system of “débrouillez-vous” (fend for yourself). For Tshisekedi to build his legitimacy and support the country’s movement towards democracy and the protection of rights, he must listen to the voices of Congolese calling for a strengthened justice system.
However, the judiciary is also a key site in the fight for power among political elites. Kabila’s government consistently undermined the independence of the judicial system by depriving it of funding and using political interference to maintain dysfunction. Tshisekedi’s presidency marks both a continuity and change. Tshisekedi has repeatedly vowed to strengthen the justice system and rule of law; a response to the overwhelming public demand for an end to widespread impunity that contributes to the country’s violence and human rights violations.
Over time, however, Tshisekedi’s focus appears to have shifted to consolidating his own power. For example, the President has made high profile judicial appointments to bolster his executive power. In October 2020, three constitutional court judges selected by Tshisekedi were sworn in after months of debate and delay. The appointments marked a political victory for Tshisekedi. Control of the country’s judiciary, especially the constitutional court, is an ongoing struggle between Tshisekedi and former president Kabila because the court can proclaim the results of presidential elections, thus Tshisekedi’s appointments gave him greater power over lawmaking and electoral issues. Tschisekedi’s appointments maintained the tradition of using the judiciary to consolidate political rule. A youth activist group commenting on the appointments wrote “[r]eplacing judges under the orders of Kabila by judges under the orders of Tshisekedi does not advance the rule of law.”
In contrast, a potentially promising step for strengthening the rule of law occurred in June 2020 with one of the country’s first prosecutions of a senior politician for corruption. Vital Kamerhe, the President’s chief of staff and a former Kabila ally, was convicted and sentenced to 20 years for embezzlement and corruption. While the prosecution sparked hope in the fight against corruption, it is inseparable from the country’s political dynamics. Kamerhe was a powerful political rival of both Tshisekedi and Kabila and was expected to run in the 2023 presidential election, so there are still “a number of reasons to be skeptical about the motivation of this [prosecution] and also to be skeptical about the longevity of any kind of sustained effort to go after anybody in the DRC who’s involved in corruption.” In fact, this case highlighted the risk involved in fighting corruption and impunity. The original presiding judge was found dead and an autopsy revealed the death was caused by a brain hemorrhage from trauma, which triggered a murder investigation.
To achieve meaningful change, Tshisekedi must prioritize the justice system and the fight against impunity. Civil society leaders are reinvigorating their calls for the government to deliver justice and end impunity for the violence and human rights violations the public has experienced for decades. The DRC must reform and strengthen its judicial system as well as make use of regional and international instruments to help deliver justice. In December 2020, the DRC took a promising step. The country ratified the Protocol that established the African Court on Human and People’s Rights. The court is intended to enhance the protection of human rights on the African continent through providing access to justice and contributing to the establishment of human rights norms. The court has also been celebrated by some for providing an African alternative to the ICC, which has been criticized by the African Union and some African states for having a racially biased focus on indicting Africans.
The DRC’s decision to join 30 other African states in ratifying the Protocol is significant. To maximize the impact of this decision, the country must also make a declaration recognizing the court’s competence to receive cases directly from individuals and non-governmental organizations. Providing individuals and organizations direct access to the court would deliver a meaningful step in the fight against impunity. As the President of the African Court, Hon. Justice Sylvain Oré noted, “[t]he DRC has moved a step to safeguard human rights. I strongly encourage the central African country to take one more bold step by making the Declaration . . . to allow NGOs and individuals to access the court directly.” Until this happens, civil society groups should leverage the country’s ratification to keep pressure on the government for further action. Steps like this, while not a panacea for the country’s political and legal crises, provide an opportunity to ensure more Congolese can access justice. In addition, such steps can signal to domestic and international constituencies that human rights and rule of law are gaining power in the DRC.
Author Biography: Heather Zimmerman is a moderator for the International Law and Policy Brief (ILPB) at The George Washington University Law School. She received an M.Sc. in International Development and Humanitarian Emergencies from the London School of Economics and Political Science (LSE) and an M.Sc. in Violence, Conflict, and Development from SOAS, University of London. Prior to law school, she spent a decade working as a human rights advocate and researcher in the United States, United Kingdom, Uganda, the Democratic Republic of the Congo, and India.