Willy NGOMA
JF-Expert Member
- Feb 25, 2016
- 4,507
- 5,981
After having followed several times, in English and in French, the interview granted by former President Joseph Kabila Kabange to the international press (
View: https://youtu.be/seDARKLdB0s?si=Ndu0-c6EbVevflii), here is my assessment as a doctoral researcher in criminal law and criminology at UNIKIN: the Raïs, affectionately so called by his supporters, has revealed himself to be a true “Mwalimu” of Kabilism, teacher of the vision of a Great Democratic Congo. From Aristotle to Hegel, from Jürgen Habermas to articles 64 and 220 of our Constitution of February 18, 2006, which he himself promulgated, a single demand emerges: the DRC, land of our ancestors, must be a Nation that administers itself democratically, and not a people subjected to the interests of an antidemocratic or tyrannical power.
After the post-independence crises and the long decades of dictatorship, article 64 enshrined the constitutional right and duty to thwart any individual or group of individuals who seize power by force or exercise it in violation of the Constitution. As this historical reading reminds us, resistance was already inscribed in Congolese political practices and aspirations, from the crises following independence, the assassination of Patrice-Émery Lumumba, and the Mobutu dictatorship under the Republic of Zaire. In the face of the contestations surrounding the 2023 elections, the accusations of opposition repression, the death sentences, the suspensions of political party activities, particularly the PPRD and the FCC, the confiscations of assets, and the refusal of an inclusive national dialogue, a fundamental question arises: must the people resign themselves when democratic mechanisms seem confiscated by those who hold power?
In his book, "Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy," Jürgen Habermas sheds light on the relationships between Parliament, the public sphere, and the formation of the general will. Democracy is not reduced to the formal existence of representative institutions: it demands free deliberation, the confrontation of opinions between the majority and the opposition, as well as the effective participation of citizens. A Parliament cannot claim to fully express the general will if the opposition, independent civil society, and the press, both public and private, are deprived of their place in the democratic debate.
In constitutional criminal law, the articulation of articles 64 and 220 raises a decisive question: how to protect the constitutional order without turning criminal law into an instrument for criminalizing the opposition and the citizen's duty to thwart any power exercised in violation of the Constitution? The exercise of the right of resistance cannot be automatically equated with offenses against the security of the State as provided for in articles 195 and 196 of the Congolese Penal Code. It must, however, be assessed in light of the circumstances, the acts actually committed, and the requirements of criminal legality. Similarly, article 64 does not constitute a blank check: resistance must be distinguished from international crimes repressed by the Rome Statute, to which the DRC is a party.
Who, among the defenders of the regime in place, will be able to counter this reading of the Kabilist vision of a Great Democratic Congo, at the heart of Africa, which the Raïs Joseph Kabila Kabange comes to demonstrate in this interview, and which I support with my modest constitutional and criminal argumentation as a thesis researcher, to solicit your scientific critiques, so that finally, from these clarifications of the practical reason for being of article 64 of the 2006 Constitution, no succeeding regimes will ever again confuse political opposition, constitutional resistance, and attacks on the security of the State! The Congolese people alone hold sovereignty.
View: https://youtu.be/seDARKLdB0s?si=Ndu0-c6EbVevflii), here is my assessment as a doctoral researcher in criminal law and criminology at UNIKIN: the Raïs, affectionately so called by his supporters, has revealed himself to be a true “Mwalimu” of Kabilism, teacher of the vision of a Great Democratic Congo. From Aristotle to Hegel, from Jürgen Habermas to articles 64 and 220 of our Constitution of February 18, 2006, which he himself promulgated, a single demand emerges: the DRC, land of our ancestors, must be a Nation that administers itself democratically, and not a people subjected to the interests of an antidemocratic or tyrannical power.
After the post-independence crises and the long decades of dictatorship, article 64 enshrined the constitutional right and duty to thwart any individual or group of individuals who seize power by force or exercise it in violation of the Constitution. As this historical reading reminds us, resistance was already inscribed in Congolese political practices and aspirations, from the crises following independence, the assassination of Patrice-Émery Lumumba, and the Mobutu dictatorship under the Republic of Zaire. In the face of the contestations surrounding the 2023 elections, the accusations of opposition repression, the death sentences, the suspensions of political party activities, particularly the PPRD and the FCC, the confiscations of assets, and the refusal of an inclusive national dialogue, a fundamental question arises: must the people resign themselves when democratic mechanisms seem confiscated by those who hold power?
In his book, "Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy," Jürgen Habermas sheds light on the relationships between Parliament, the public sphere, and the formation of the general will. Democracy is not reduced to the formal existence of representative institutions: it demands free deliberation, the confrontation of opinions between the majority and the opposition, as well as the effective participation of citizens. A Parliament cannot claim to fully express the general will if the opposition, independent civil society, and the press, both public and private, are deprived of their place in the democratic debate.
In constitutional criminal law, the articulation of articles 64 and 220 raises a decisive question: how to protect the constitutional order without turning criminal law into an instrument for criminalizing the opposition and the citizen's duty to thwart any power exercised in violation of the Constitution? The exercise of the right of resistance cannot be automatically equated with offenses against the security of the State as provided for in articles 195 and 196 of the Congolese Penal Code. It must, however, be assessed in light of the circumstances, the acts actually committed, and the requirements of criminal legality. Similarly, article 64 does not constitute a blank check: resistance must be distinguished from international crimes repressed by the Rome Statute, to which the DRC is a party.
Who, among the defenders of the regime in place, will be able to counter this reading of the Kabilist vision of a Great Democratic Congo, at the heart of Africa, which the Raïs Joseph Kabila Kabange comes to demonstrate in this interview, and which I support with my modest constitutional and criminal argumentation as a thesis researcher, to solicit your scientific critiques, so that finally, from these clarifications of the practical reason for being of article 64 of the 2006 Constitution, no succeeding regimes will ever again confuse political opposition, constitutional resistance, and attacks on the security of the State! The Congolese people alone hold sovereignty.