Draft Constitution of the Transition

Country/entity
Democratic Republic of Congo
Region
Africa (excl MENA)
Agreement name
Draft Constitution of the Transition
Date
01/04/2003
Agreement status
Multiparty signed/agreed
Agreement/conflict level
Intrastate/intrastate conflict (Congo Civil Wars (1996 - )
The overthrow of the long-term dictator Mobutu Sese Seko by a rebel Tutsi army backed by Uganda and Rwanda in 1997 acted as a catalyst for a war with regional dimensions, mainly fought in the eastern Kivu provinces. The conflict escalated in 1998, when President Laurent Kabila, then backed by Zimbabwean and Angolan troops, ordered Rwanda and Uganda to leave. After Kabila’s assassination in 2001, his son Joseph took over the presidency and won in the 2006 democratic elections.

In the eastern provinces, Tutsi-led militias, mainly organised in the National Congress for the Defense of the People (CNDP), fought the remnants of the Rwandan Hutu force FDLR, with further involvement of Rwandan and Ugandan troops. Other regionally operating militia groups, like the Lord’s Resistance Army from Northern Uganda, the so-called Mai Mai groups or short-lived guerrilla outfits like the March 23 Movement (M23) further contributed, and still contribute, to the complexity of the situation in eastern DRC.

Congo Civil Wars (1996 - ) )
Stage
Framework/substantive - comprehensive (Constitution)
Conflict nature
Government
Peace process
31: DRC: Second Congo war process
Parties
For the Rassemblement Congolais pour la Démocratie / Mouvement de Libération du Congo (RCD-ML): (three signatories all illegible)

For the Rassemblement Congolais pour la Démocratie/National (RCD-N):
[Signature illegible]

For the Maï-Maï:

Subject to reservations: - Problem of nationality, idea of an “integrated nation”, the Head of State has to be the Head of Government at the same time.

29 SIGNATORIES For the Political Opposition (no signatures in the document)

27 SIGNATORIES For Civil Society (no signatures in the document)
Third parties
WITNESSES:

His Excellency Mr Thabo Mbeki, President of the Republic of South Africa and Chairman in office of the African Union,represented by His Excellency His Excellency Mr Sydney Mufamadi, Minister of Provincial and Local Government,

His Excellency Mr Moustapha Niasse,Special Envoy of the Secretary General of the United Nations for Inter-Congolese Dialogue, representing His Excellency Mr Kofi Annan, Secretary General of the OAU
Description
The Transition Constitution, which was established as a result of the 2002 Global and Inclusive Agreement of Sun City (and was in effect until the current constitution came into force in 2006). The transition Parliament is bicameral. It entrusts the Senate of designing the draft Constitution, which will be submitted to referendum. The Senate has the mandate to act as mediator between institutions in case of political conflicts. Moreover, it sets out the composition of the Senate which shall be composed of 120 members, appointed by the ICD bodies and entitites, which shall ensure the representation of all provinces as well as women. It also sets out the role and composition of the Presidency and Vice-Presidency, Government, the National Assembly and relations between the executive power and the legislative power, and the Judiciary. It also sets out the basic rights and duties of the citizen. And establishes five institutions for the promotion of democracy, including: The Independent Electoral Commission,The National Human Rights Commission, The Media Council, The Truth and Reconciliation Commission, The Ethics and Corruption Commission.


Agreement document
DRC_030401-Draft Constitution of the Transition.pdf

Main category
Page 2, Preamble:
[...]
DETERMINED to guarantee the basic freedom and rights of the Congolese citizen and, in particular, to defend those of women and children;

Page 3, Preamble:
[...]
ENDEAVOURING to guarantee a peaceful transition in the Democratic Republic of Congo operating according to the principles of consensus, inclusiveness and non-conflict and based on as just a distribution as possible of different Government responsibilities between the Components and Entities to the inter- Congolese Dialogue, an appropriate representation of the Provinces and the different political sensitivities and, in particular, effective participation of women on all levels of responsibility, taking into account the criteria of competence, credibility and integrity, in a spirit of national reconciliation;

Page 6, CHAPTER II: SOVEREIGNTY Article 10
...

According to conditions determined by the law, the voters shall all be Congolese of both sexes, over the age of eighteen, who enjoy their civil and political rights.

Page 8, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 17

All Congolese shall be equal before the law and shall have the right to equal protection of laws.

A Congolese person may not, with regard to education and access to public functions or any other matter, be the subject of a discriminatory measure, irrespective of whether it results from the law or an act of the executive, for reasons of religion, sex, family origin, social condition, residence, opinions or political convictions, allegiance to a race, ethnic group, tribe, cultural or linguistic minority.


Page 13, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN,

Article 39

...

The working rights of an individual may not be harmed due to his/her origins, sex, opinions or beliefs.


Article 40
The right to create organisations shall be guaranteed.
Public authorities shall collaborate with private national associations that contribute to the social, economic, intellectual, cultural, moral and spiritual development of populations and education of male and female citizens.

Page 15, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 44

All children shall have the right to know the names of their father and mother.

...

The State shall be obliged to protect the child against prostitution, procuring, homosexuality, incest, paedophilia, sexual harassment and all other forms of sexual perversion.



Page 17, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 51,

The State shall have the duty to ensure the elimination of all forms of discrimination with regard to women and to ensure the respect and promotion of their rights.

The State shall be obliged, in all areas, in particular in the economic, social and cultural sectors, to take all appropriate measures to ensure the full participation of women in the development of the nation.

The State shall take measures to fight against all forms of violence against women in public and private life.

Women shall have the right to significant representation in national, provincial and local institutions.


Page 26, PARAGRAPH I: THE NATIONAL ASSEMBLY, Article 99

The National Assembly comprises 500 members designated by the Components and Entities of the Inter-Congolese Dialogue according to the conditions defined in Annexure I B of the Global and Inclusive Agreement.

All the Components and Entities ensure a balanced provincial representation and simultaneously a significant presence of women in Parliament.

Nobody may be a Member of Parliament if he/she is not a Congolese citizen 25 years old at least at the time of his/her designation.

Page 28, SECTION II, PARAGRAPH II, Article 105:
The Senate comprises 120 members designated by the Components and Entities of the Inter-Congolese Dialogue according to the conditions set out in
Annexure I B of the Global and Inclusive Agreement.
All the Components and entities ensure a balanced provincial representation as well as a significant presence of women within the Senate.
Nobody may be a Member of the Senate unless he/she is a Congolese citizen 40 years old at least at the time of his/her nomination
The Senate is constituted to ensure the representation of all the provinces.

Women, girls and gender

Participation
Effective participation
Page 3, Preamble, para 8: ENDEAVOURING to guarantee a peaceful transition in the Democratic Republic of Congo operating according to the principles of consensus, inclusiveness and non-conflict and based on as just a distribution as possible of different Government responsibilities between the Components and Entities to the inter- Congolese Dialogue, an appropriate representation of the Provinces and the different political sensitivities and, in particular, effective participation of women on all levels of responsibility, taking into account the criteria of competence, credibility and integrity, in a spirit of national reconciliation;

Page 17, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 51,
...The State shall be obliged, in all areas, in particular in the economic, social and cultural sectors, to take all appropriate measures to ensure the full participation of women in the development of the nation.
...Women shall have the right to significant representation in national, provincial and local institutions.

Page 26, PARAGRAPH I: THE NATIONAL ASSEMBLY, Article 99: The National Assembly comprises 500 members designated by the Components and Entities of the Inter-Congolese Dialogue according to the conditions defined in Annexure I B of the Global and Inclusive Agreement.
All the Components and Entities ensure a balanced provincial representation and simultaneously a significant presence of women in Parliament.
Nobody may be a Member of Parliament if he/she is not a Congolese citizen 25 years old at least at the time of his/her designation.

Page 28, Paragraph II: The Senate, Article 105: The Senate comprises 120 members designated by the Components and Entities of the Inter-Congolese Dialogue according to the conditions set out in Annexure I B of the Global and Inclusive Agreement.
All the Components and entities ensure a balanced provincial representation as well as a significant presence of women within the Senate.
Nobody may be a Member of the Senate unless he/she is a Congolese citizen 40 years old at least at the time of his/her nomination
The Senate is constituted to ensure the representation of all the provinces
Equality
Equality (general)
Page 6, CHAPTER II: SOVEREIGNTY Article 10: According to conditions determined by the law, the voters shall all be Congolese of both sexes, over the age of eighteen, who enjoy their civil and political rights.

Page 8, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 17, All Congolese shall be equal before the law and shall have the right to equal protection of laws. A Congolese person may not, with regard to education and access to public functions or any other matter, be the subject of a discriminatory measure, irrespective of whether it results from the law or an act of the executive, for reasons of religion, sex, family origin, social condition, residence, opinions or political convictions, allegiance to a race, ethnic group, tribe, cultural or linguistic minority.

Page 17, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 51,
The State shall have the duty to ensure the elimination of all forms of discrimination with regard to women and to ensure the respect and promotion of their rights...
Social equality
Page 8, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 17:
All Congolese shall be equal before the law and shall have the right to equal protection of laws.
A Congolese person may not, with regard to education and access to public functions or any other matter, be the subject of a discriminatory measure, irrespective of whether it results from the law or an act of the executive, for reasons of religion, sex, family origin, social condition, residence, opinions or political convictions, allegiance to a race, ethnic group, tribe, cultural or linguistic minority.

Page 13, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 39: ...The working rights of an individual may not be harmed due to his/her origins, sex, opinions or beliefs

Page 13, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 40:
The right to create organisations shall be guaranteed.
Public authorities shall collaborate with private national associations that contribute to the social, economic, intellectual, cultural, moral and spiritual development of populations and education of male and female citizens.
Particular groups of women
No specific mention.
International law
General IHRL, IHL and IL
Page 2, Preamble, Para 6:
DETERMINED to guarantee the basic freedom and rights of the Congolese citizen and, in particular, to defend those of women and children;

Page 17, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 51,
The State shall have the duty to ensure the elimination of all forms of discrimination with regard to women and to ensure the respect and promotion of their rights...
New institutions
No specific mention.
Violence against women
Sexual violence
Page 15, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 44 All children shall have the right to know the names of their father and mother. ... The State shall be obliged to protect the child against prostitution, procuring, homosexuality, incest, paedophilia, sexual harassment and all other forms of sexual perversion.
Gender-based violence/VAW (general)
Page 17, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 51,
...The State shall take measures to fight against all forms of violence against women in public and private life.
Transitional justice
No specific mention.
Institutional reform
No specific mention.
Development
General
Page 17, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 51,
...The State shall be obliged, in all areas, in particular in the economic, social and cultural sectors, to take all appropriate measures to ensure the full participation of women in the development of the nation.
Education
Page 8, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 17, All Congolese shall be equal before the law and shall have the right to equal protection of laws. A Congolese person may not, with regard to education and access to public functions or any other matter, be the subject of a discriminatory measure, irrespective of whether it results from the law or an act of the executive, for reasons of religion, sex, family origin, social condition, residence, opinions or political convictions, allegiance to a race, ethnic group, tribe, cultural or linguistic minority.

Page 14, TITLE III: PUBLIC FREEDOM, BASIC RIGHTS AND DUTIES OF THE CITIZEN, Article 40:
The right to create organisations shall be guaranteed.
Public authorities shall collaborate with private national associations that contribute to the social, economic, intellectual, cultural, moral and spiritual development of populations and education of male and female citizens.
Implementation
No specific mention.
Other
No specific mention.

The University of Edinburgh