THE STALLED TRANSITION
Mobutu Ushers in Mobutu
The announcement of a transition to multiparty democracy in April 1990 appeared to offer a promising alternative to the Popular Movement for the Revolution's personalized one-party system. Since President Mobutu seized the presidency in 1965, he has reigned as an absolute monarch: the ideology of the state was "Mobutism" and, for many years, the constitution actually placed the "Founding President" above the law.
Mobutu's rule relied heavily on his party-machine, the Popular Movement for the Revolution (Mouvement Populaire de la Révolution, MPR), the corruptive power of money and influence peddling, and, most importantly, the armed and security forces who regularly act to silence dissent and instill fear and obedience in the population at large. The president deliberately maintained a divided and weakened professional military to eliminate any possible challenge to his personalized system of power. The Zairian Armed Forces (Forces Armées Zaïroises, FAZ), were undermined, with some of the best educated officers executed or forced to flee. The president also developed elite units, such as the Special Presidential Division (Division Speciale Présidentielle, DSP); the Civil Guard (Guarde Civile); Service for Action and Military Intelligence ( Service d'Action et de Renseignements Militaires, SARM), with command structures directly linked to himself and an officers' corps that came almost entirely either from his ethnic group or region. The same was true of the civilian security force, currently known as the National Service of Intelligence and Protection (Service Nationale d'Intelligence et de Protection, SNIP).
The president's control was equally manifest in the regional and local administrations, which were subject to the strict hierarchical authority of the one party state. Provincial governors, their deputies and senior local officials were selected on the bases of loyalty to the party and its chief. Their visible role was to control and repress the population in conjunction with the local military and security commanders, while diverting the national wealth to members of the ruling elite.
Decades of mismanagement and open plundering of the country's huge resources and wealth lead to the collapse of the formal economy early in the 1990s. In its place, a parallel informal economy emerged which at best provided for the minimal survival needs of the people and the maintenance of some basic social services. In 1994, the World Bank described the economy in the following terms:
The overall size of the economy has shrunk to the level of 1958 albeit with a population of 2.9 times larger. . . . Public finances are in disarray. . . . The State is insolvent; most state-owned enterprises and financial institutions are de facto bankrupt. . . .
Enrollment in primary education declined from 95 percent in 1972-73 to 77 percent in 1986-1987 and was projected at 50 percent by year 2000, barring massive remedial actions. When open at all, the schools operate in deplorable conditions, without textbooks and teaching materials and with the students often forced to sit on the floor as desks have been looted. . . .
Health standards deteriorated due to inadequate and declining financing. In 1986, the government was financing only 5 percent of the recurrent costs in the health sector, compared to 50 percent or more in most sub-Saharan African countries. . . .2
The national currency has become nearly worthless. The "New Zaire" (N.Z.) replaced the previous currency in October 1993 at a rate of 1 N.Z. to 3 million "old" Zaires (then worth about one dollar). Hyperinflation has continued ever since. With the introduction of a one million N.Z. bank note in December 1996, the exchange rate plunged from 100,000 N.Z. to the dollar to 200,000 N.Z.
As the economic crisis worsened, security forces, including elite units, went for months without pay or provisions. Serious problems of collapse of military discipline occurred, and extorsion of the population became a fundamental means of survival for the soldiers. Previously, when internal dissent and regional rebellions threatened his hold on power, Mobutu could play the card of cold war rivalries, obtaining the military support and diplomatic backing he needed from foreign allies including France, Belgium, and the U.S. as well as several of their regional allies, notably Morocco, Egypt, Senegal and Israel. Since 1991, overt military support to the Mobutu regime has disappeared, but the president's foreign allies have never entirely turned their back on him.
In the face of mounting popular pressure for democracy Mobutu conceded in 1990 to the convening of "popular consultations." Pro-democracy forces seized on the opportunity to break twenty-five years of public silence on the future of the country. The unexpected outcry forced Mobutu to take further steps, announcing a limited transition to "three-party" democracy on April 24, 1990. The population rallied together to demand a national conference involving all sectors of the society to decide the fate of the country. After struggles that lasted two years and brought more than one million people to the streets of Kinshasa, President Mobutu allowed the National Sovereign Conference (Conference Nationale Souveraine), to go forward. The National Sovereign Conference debated the history and future of the country and drafted the texts which were to guide the transition to democracy. It remains the only basis for the transition that has widespread legitimacy within the population.
Despite frequent interference from the authorities, the National Sovereign Conference succeeded in establishing a transition government and parliament in August 1992, electing opposition leader Etienne Tshisekedi as prime minister. The level of violence increased almost as soon as the new government was inaugurated. Bands of youth in the southern province of Shaba, incited by the Mobutu-appointed governor,3 began to attack "Kasaiens," migrants from the neighboring Kasai region, leading to thousands of internally displaced. The conference adjourned in December 1992 with a declaration that its work will be continued by a transitional legislature called the High Council of the Republic (Haut Conseil de la République, HCR). The 453 members of the council continued to support Tshisekedi, but interventions from the armed forces in the following months effectively managed to obstruct its work.
Massive army-led pillaging disrupted the country beginning in January 1993. In March, the president put an end to the transition process of the National Sovereign Conference. He revived the discredited National Assembly, composed exclusively of handpicked delegates of the ruling party and inaugurated a parallel transition process, the "Conclave," that drafted its own constitution and named Faustin Birindwa as prime minister.
The new government was rejected by the population and most foreign governments, while the powerless government of Tshisekedi continued to insist on its legitimacy. In order to put an end to the impasse, in the absence of foreign pressure on Mobutu, the opposition Sacred Union of the Radical Opposition and its Allies (Union Sacrée de l'Opposition Radicale et Alliés, USORAL), agreed to compromise with the Mobutists. Negotiations began at the end of 1993 and led to an unwieldy power sharing arrangement, the Protocol of Agreement, (Protocol d'Accord), which consecrated the division of power between the two political "families," the Mobutist forces known as the Forces Politiques du Conclave (FPC) and USORAL.4 The opposition agreed to combine the National Assembly with the High Council of the Republic (the successor to the National Sovereign Conference), creating a monstrous body of 738 members, with a majority of members named by President Mobutu. This is the High Council of the Republic -Transitional Parliament (Haut Conseil de la République - Parlement de Transition, HCR-PT, henceforth Transitional Parliament). In exchange, the opposition obtained the right to name the prime minister and safeguards against his removal.5 In addition, the Protocol of Agreement established the concept that all decisions of "national importance," including matters of "national sovereignty and the institutional order of the transition" would be made by consensus.6 Although the power of the National Sovereign Conference was significantly diluted, its acts and conclusions remained the theoretical basis for laws to be enacted by the transition government and parliament.7
The Kengo Government
A new government was established by the transitional parliament under a cloud of controversy on June 14, 1994. The Transitional Act was adopted April 9, 1994, following the principles established by the Protocol of Agreement. But the opposition "family" broke down almost immediately during negotiations over the choice of a prime minister. Contrary to the terms of the Protocol and the Transitional Act, the choice was put to a vote of the newly constituted transitional parliament. With the support of the Mobutist contingent, Léon Kengo wa Dondo, long time prime minister and minister of justice in previous Mobutu governments, was elected with just 332 out of 738 possible votes. The remaining opposition, grouped around Etienne Tshisekedi, boycotted the vote. After long delays, a cowed Supreme Court rejected a legal challenge to Kengo's election.8 Meanwhile the opposition continued to deny the legitimacy of Prime Minister Kengo while alternately obstructing and grudgingly participating in the work of the transitional parliament.
Prime Minister Kengo quickly won the support of western governments and the international financial institutions by presenting himself as a reformer, caught between a recalcitrant Mobutu and uncooperative, radical opposition. In the first months of his term, he succeeded in restoring some order to the production of currency and the operations of the Central Bank, both of which had been converted to the private interests of Mobutu and hisclique. He even appeared responsive to complaints about human rights abuses, timidly seeking to temper the excesses of the Mobutist military officials. For example, in July 1994, during a visit to Goma, Prime Minister Kengo promised to remove two army units accused of committing human rights violations by the local population, but ultimately failed to do so.
Eventually, however, the Kengo government began to defend the human rights violations of the regime. The government's evolution is illustrated through its relations with the U.N. Commission on Human Rights and the special rapporteur appointed by the commission. Roberto Garretón was invited to visit Zaire soon after he was appointed special rapporteur for Zaire in the fall of 1994. He was received by officials, including the prime minister, who openly discussed problems related, for example, to the ethnic composition of the armed forces.9 With respect to the "flagrant" problem of impunity, the special rapporteur noted in December 1994 that,
So far, the Kengo Government has been unable to control this situation, whose existence it does not deny. The Prime Minister told the Special Rapporteur that one of his Government's objectives was to restore the authority of the State, including control of the armed forces which, in his view, `should be purged'.10
The rapporteur noted the good will of the Kengo government, but concluded that human rights violations continued and that "the Government of Prime Minister Kengo has not the slightest influence to put an end to the excess, to prevent them or still less, to punish them. . . ."11 He also noted serious violations that had occurred since the government had come into office, including the killing of two journalists.
During the course of the next year, the Kengo government reportedly did not respond to any of the special rapporteur's requests for information regarding human rights abuses as they arose. Then the government blocked the rapporteur's efforts to return to the country. He proposed several dates before the government finally responded, on November 8, 1995, too late for the proposed mission to be carried out before the Human Rights Commission meetings. The rapporteur noted "more hostility than in the previous year as evidenced by the absence of response to his request to obtain authorization to visit the country, the extreme delay in the invitation that arrived, the absence of response to communications noting complaints-or even an acknowledgment of receipt, constant questions about his mandate and constant reproaches addressed to the U.N. for submitting Zaire to so-called special treatment."12
After his second report was issued, the government launched a major attack on the rapporteur. In the Council of Minister's meeting of March 14, 1996, the prime minister said the "injustice" of the report provoked "disgust."13 The prime minister's response was widely published. He demanded that Mr. Garretón "repair the prejudice caused to Zaire by correcting [the report] before its presentation."14 In his defense of Zaire before the Commission on Human Rights, the minister of justice, Nsinga Udjuu, another long time Mobutist minister, defended the government of Zaire without acknowledging any merit to criticism.
The prime minister singled out for particular criticism Mr. Garretón's treatment of the citizenship problems of the Banyamulenge, the native-Zairian Kinyarwanda-speaking group related to the Tutsi in Rwanda and Burundi. His report was one of the first to comment on the situation of the Banyamulenge, six months before full-scale violence erupted in eastern Zaire. The government did not seek to dissociate itself from the violations cited in the report, but rather attacked Garretón's sources of information. Interior Minister Kamanda wa Kamanda, in particular, criticized the rapporteur's reliance on Zairian human rights NGOs.
The passage of time also showed the government's unwillingness to break with the cycle of impunity that the rapporteur identified. Despite promises, the government failed to take any steps to prosecute those responsible for violent suppression of political activity.
The Protocol of Agreement
The stated central purpose of the Protocol d'Accord and the Transitional Act is to lay the basis for a peaceful, democratic transition in the shortest time possible. The transition documents lay out a series of basic conditions and understandings, the central goals of which are to reform the armed forces, depoliticize the state administration and create a level playing field for political participation. The original fifteen-month time-frame was doubtless too short to achieve all of the goals of the transition even had the political will existed to do so. However, little at all was accomplished in the first months of the Kengo administration. Eight months after Kengo's selection, the special rapporteur noted that "no steps had been taken."15 A year later, the rapporteur concluded that 1995 was "a lost year for the transition process."16 There was no effort made to regulate the military or security forces, no reform of the territorial administration and no approved draft constitution.17
One step that the government took was to propose a law creating the National Electoral Commission (Commission Nationale des Elections, CNE), in May 1995. The law maintained the distinction-rendered increasingly fictional by Kengo's uncertain loyalties and later splits in the opposition-between the Mobutu political group and the opposition. It established a body of forty-four people coming equally from the two sides. Church groups and NGOs objected strongly to the law because it formally limited the membership of the commission to these two political groups and consequently failed to include unaffiliated members of the civil society. This was particularly pertinent with regard to local branches of the electoral commission due to the absence of meaningful political structures in most of the country's interior.
In July 1995, the transitional parliament voted to prolong the transition for two more years, creating suspicion that the massive body was primarily intent on preserving its own prerogatives. The government then delayed until the end of the year before actually installing the electoral commission, while withholding funds for its functioning. Nevertheless, the commission's members took matters into their own hands, acting with determination to establish an internal bureau and commence the commission's work.
The next few months saw little activity, however. The commission had no funding and no legal texts on which to base its work. The draft constitution and electoral law languished before the parliament where they haveyet to be adopted.18 Meanwhile, the minister of interior established an inter-ministerial committee on elections without the participation or consultation of the electoral commission. As the then vice president of the commission, Professor George Nzongola-Ntalaja wrote, the inter-ministerial committee was "created for the purpose of trespassing on the prerogatives of the National Electoral Commission."19 In September 1996, Professor Nzongola resigned, noting the absence of political will and consensus to go forward to elections. "As for the government," Professor Nzongola stated, "no one can today doubt its lack of sincerity in regard to support for the electoral process."20
Preconditions for Elections
The protocol that established the basis for the transition is very explicit about the conditions for elections. It lays out a series of "imperative" preconditions on which all sides agreed, including:
* providing security to the population by depoliticizing the army and extending government control over the Civil Guard and police;
* establishing basic political freedoms, including freedom of speech, particularly making public radio and television accessible to all points of view; and
* depoliticizing the regional and local administration.
The protocol also lays out several conditions specific to the electoral process itself. These include:
* obtaining the presence of international observers before, during and after the elections;
* completing the identification of citizens;
* completing the census of the population;
* completing the voter registration; and
* obtaining the following in sufficient numbers: transparent ballot boxes; ballots; vehicles; telecommunications materials; and all other necessary documentation.
Long before the war offered itself as a reason for further delays, the Kengo government had ceased serious efforts to put into place any of these preconditions.
Reform of the Military and Security Services
Control of the military and security forces is a central theme of the Protocol of Agreement, which is not surprising in light of the violence used for more than thirty years to stop the democratic process at every juncture. In its articles 17 and 41, the Protocol stresses "the necessity" of depoliticizing the army and subjecting the Gendarmerie Nationale, Civil Guard and security services to government control. There was particular concern for the possibility that security forces would disrupt the elections and the protocol (article 17) required the government to put into place measures to prevent this.
NGO representatives from all eleven regions of Zaire cited insecurity as the major preoccupation of the population in a survey by the leading rights group Voice of the Voiceless for Human Rights, (La Voix des Sans Voix pour les Droits de l'Homme, V.S.V.), and said the main culprits were undisciplined soldiers operating with impunity.21 International teams investigating the conditions for elections have all noted the fear of the population concerning the security forces.22 Ethnic and regional allegiance to President Mobutu diminished the likelihood that these forces would stay neutral during vital phases of the electoral process such as guarding polling stations, transporting ballot boxes, and protecting campaigners and voters of all political inclinations.
The National Sovereign Conference decreed early in the transition process that the reform of the military was an essential precondition to guarantee free and fair elections, and reassure the population and opposition groups. Since then, opposition groups have repeatedly called for the reform of the army and other security forces, which they continue to view as ethnically imbalanced and politicized, and hence inclined to favor the presidential alliance and to crack down on their activists.
The Kengo government itself acknowledged the need for the reform, for example, in his early meetings with the special rapporteur, but took no noticeable measures to this end. By March 1996, in response to the U.S. State Department's 1995 human rights report, Kengo insisted that proposed laws on the creation of a Superior Council for Defense and the reform of the security forces would address many of the problems, but neither draft law has ever been made public or submitted for debate before the transitional parliament.23
Reform of the Territorial Administration
Nothing has been done to reform the regional and local administrations, called in Zaire the territoriales, all of them still dominated by the previous single party regime until the war in the east.
In a memorandum submitted to a visiting U.N. delegation in July 1996, the Shaba branch of the Union for Democracy and Social Progress, (Union Pour la Démocratie et le Progrès Social, UDPS), the main opposition party, considered "the equitable and balanced distribution of posts at the level of regional administrations, diplomacy andministerial positions"24 as one of the conditions on which it said the UDPS would base its participation in the elections. The government's response to these expectations was to issue promises of imminent moves to "bi-polarize" the territorial administration's posts, namely those of governors, vice-governors and subregional governors, so that both political groups would be represented.25
Elections on Hold
The most recent schedule for elections was considered to be at least three to four months out of date at the time of the December 1996- January 1997 Human Rights Watch/Africa mission, even if preparations were to have begun in earnest. The said schedule called for a constitutional referendum on February 14, 1997. Presidential and legislative elections were to follow on April 12, 1997, with a second round on May 11, 1997, with local elections on July 7, 1997. At that point the mandate of the transitional parliament was to have come to an end. The constitutional referendum was to be preceded by voter registration and a national census. A pilot census project was to be launched on 15 January 1997. The census was necessary in the view of Zairian authorities-although not all foreign advisers-to identify the 42,000 polling stations, determine the number of parliamentary seats per electoral district and establish a definitive electoral list. Neither the census nor the voter registration was initiated.
In early February, Prime Minister Kengo declared that elections would have to be postponed because of the war. The postponement automatically entailed an extension of the Transitional Act and thus of the president's mandate, which in the absence of that act would have expired more than five years ago. The effect of the postponement on the legitimacy of the transition process, and in particular of the extension of President Mobutu's mandate, under any circumstance, was further disillusionment.2 World Bank, "Zaire: Strategic Orientations for Reconstruction," quoted in J.C. Willame et al, "Zaire: Predicament and Prospects, A Report to the Minority Rights Group (USA)," United States Institute of Peace, Peaceworks No. 11, Washington, January 1997, p. 9. 3 See below the section "Shaba, A Regional Perspective." 4 See para.18 in: United Nations, "Report on the Situation of Human Rights in Zaire, Prepared by the Special Rapporteur, Mr. Roberto Garretón in Accordance with the Commission Resolution 1995/69," United Nations Publications, New York, 1996, E/CN.4/1996/66; 29 January 1996. 5 It requires a vote of three-fourth of all members of the transitional parliament in order to censure the government, to bring charges against the President of the Republic or to modify the Constitution. Protocol d'Accord, Art. 11. 6 Protocol d'Accord, Art. 11. 7 Transitional Act, Arts. 58 and 75. 8 The court's decision was rendered in 1996, a year and a half after the Kengo government was installed. 9 United Nations, "Rapport sur la situation des droits de l'homme au Zaire...," (E/CN.4/1995/67), p. 14. 10 Ibid., p. 17. 11 Ibid., p. 49. 12 Page 6. 13 Government of Zaire, "Compte rendu de la réunion du conseil des ministres du Jeudi 14 Mars 1996," p. 2. 14 Ibid. 15 E/CN.4/1995/67, p. 24. 16 E/CN.4/1996/66, p. 29. 17 The legislative agenda of the transitional parliament depends on the government's will. Like many of the public institutions in the country, the transitional parliament is highly influenced by pay-offs and bribes. The salary of the deputies, which has varied, is currently at about US $200/month. One deputy told Human Rights Watch/Africa that the Kengo government must pay an additional $200/month to maintain the allegiance of its majority. "Some deputies complained recently," he told Human Rights Watch/Africa, "when Kengo didn't pay." For special votes, such as a vote of confidence, the Kengo government has reportedly paid as much as $500 per vote. 18
When the government did introduce a draft constitution, it was rejected because it was not the draft prepared by the National Sovereign Conference. Instead, it sought to give back many of the presidential prerogatives which the National Sovereign Conference had proposed to remove. When the transitional parliament submitted the National Sovereign Conference draft with the law for a Constitutional Referendum, Mobutu signed the law, but returned the marked up draft constitution to the parliament without signature.19 Statement by Professor Georges Nzongola-Ntalaja on his Resignation from the National Electoral Commission, September 3, 1996. A U.S. election assessment team was more restrained in their judgment. They noted that "Contradictory statements from high-level numbers (sic) of the CIM [Inter-ministerial committee] have contributed to confusion regarding the apparently overlapping mandates of the inter-ministerial commission and the electoral commission on policy as well as planning and implementation of pre-electoral and electoral events. See: Consortium for Elections and Political Process Strengthening, "Zaire: Joint Pre-Election Assessment Mission - September/October 1996," the International Republican Institute, the International Foundation for Electoral Systems, and the National Democratic Institute. 20 Ibid. 21 See: Voice of the Voiceless (V.S.V. ), "Apercu sur l'état des droits de la personne humaine dans les onze provinces (regions) du Zaire," Kinshasa, June 1996. 22 See, for example, Consortium for Elections and Political Process Strengthening, "Zaire: Joint Pre-Election Assessment Mission, September/October 1996," p. 53: "The team encountered considerable apprehension on the part of Zairians from all walks of life concerning the role of the military during elections. Many interlocutors cited concerns that security forces will be undisciplined, violent and intimidating to politicians and voters." 23 This draft legislation was cited in the official Compte rendu de la reunion du conseil des ministres du Jeudi, 14 Mars 1996. 24 UDPS, Shaba, "Memorandum remis ce Jeudi, 11 Juillet 1996, a la délégation de L'ONU en mission politique à Lubumbashi." Copy made available to Human Rights Watch/Africa by the UDPS. 25 Consortium for Elections and Political Process Strengthening, "Zaire: Joint pre-elections assessment mission...," p. 18.