First published by ISS Today

There is a new video doing the rounds on social media and television stations in the Democratic Republic of the Congo (DRC). It’s a two-minute homage to President Joseph Kabila, crediting him with everything from reunifying the country after the 1998-2003 war to reviving agriculture and guaranteeing effective democracy in the DRC. It ends with the statement: “This man is indispensable for the Congo.”

The message is confusing, because it looks and feels very much like a campaign video. And yet Kabila is not allowed to stand in the presidential elections, already delayed by two years and now due to be held on 23 December.

This mystery – will he stand or won’t he – and the instability it has created have been largely driven by the ruling party and Kabila’s refusal to state clearly that he is not a candidate. Instead, the stock phrase that has been used is: “President Kabila will respect the constitution.”

We will know for sure on 24 June, when all presidential contenders have to declare their candidacy. With only a few weeks to go until the big reveal, rumours and intrigue are running high in the Congolese capital, where solid facts, especially on the dynamics in the ruling party, are hard to come by.

There are two theories about how Kabila might manage to cling to power. The first, and less plausible, is that the government will announce the need for a referendum on the question of the nationality of a presidential candidate, and then slip in the question of whether or not the two-term limit should be amended.

It’s a clever move, as it addresses one of the key hurdles faced by opposition leader Moïse Katumbi, whom the Congolese government has said is ineligible for the presidency as he holds Italian nationality (an assertion denied by Katumbi). The government would therefore attempt to make it look like it was trying to accommodate Katumbi, while actually pursuing its agenda on term limits.

The second theory – the one that looks plausible – is that the newly appointed Constitutional Court, stacked with pro-Kabila judges hand-picked by him and his party, will be asked to rule on whether this is in fact Kabila’s first or second term.

The argument would be that because the constitution was amended in 2011 to scrap the need for a run-off if a candidate doesn’t secure two thirds of the vote in the first round, Kabila has only been elected once under the amended constitution and is therefore eligible for a second term.

Given the time constraints and massive logistics involved in holding a referendum, the Constitutional Court avenue seems the better choice for a guaranteed outcome in Kabila’s favour.

Whichever avenue he chooses, the outcome would be a blatant manipulation of Congolese institutions and texts to facilitate the incumbent clinging to power. This is the precise situation which Article 23.5 of the African Charter on Democracy, Elections and Governance defines as an unconstitutional change of power.

Under such circumstances, the African Union (AU), the Southern African Development Community (SADC) and the International Conference on the Great Lakes Region (ICGLR) must react firmly, applying whatever tools are at their disposal to sanction Kabila and his government.

Key countries in the region are already becoming more vocal. In the past week, Angola stated clearly that Kabila must not stand for a third term.

But it is equally important that these continental and regional bodies prevent Kabila and his government from presenting technical progress on elections as a fig leaf for the fact that they have no intention of holding a free and fair election or ceding power. There are serious technical and political concerns that must be addressed urgently.

Reports assessing the electoral process highlight key concerns. The Organisation international de la Francophonie (OIF) published its audit findings of the voters roll last week, saying it was “inclusive, exhaustive and up to date, but imperfect”.

It noted that 16.6% of registered voters didn’t give a thumbprint, while others were missing photos and registration formulas. This, the OIF has said, is worrisome, as it cannot verify whether these registrations are for existing or fictional people.

In a recent report, the United Nations (UN) Secretary-General António Guterres expressed concern over the financing of the elections. He noted that the government was disbursing per month only about a third of the funds needed for the Commission Électorale Nationale Indépendante (CENI) to meet all the deadlines by voting day on 23 December.

There is also the issue of the voting machines. The DRC constitution doesn’t provide for the use of voting machines, and the opposition suspects they’ve been introduced to influence the outcome of the election. Equally important is the fact that many people will be unfamiliar with the technology, even needing help when they vote, which could lead to manipulation.

Then there is the question of the political space. Freedom of expression remains severely curtailed, with journalists, civil society activists and political opponents being harassed and imprisoned. The ban on political marches remains in place and state broadcasting media dominate, giving little airtime to the opposition.

Meanwhile there is still the question of which opposition parties will be accredited to run. The process is highly contentious due to the cloning of the most significant opposition parties such as the Union for Democracy and Social Progress by co-opted opposition leaders close to Kabila.

This election’s credibility is the key to restoring stability in the country. It will not solve all of the DRC’s problems, but as long as the country has a contested government at its helm – one that lacks legitimacy – none of the DRC’s longer-term peace and security or development issues can be addressed.

Even if Kabila doesn’t hold a referendum or attempt to argue that he has only had one term, the technical concerns and political environment in the country make it doubtful that a credible election will take place.

If continental and regional bodies don’t take a firm stance now, demanding that the 31 December 2016 accords be applied, all political freedoms be restored, political prisoners be freed, the playing field for electoral campaigns be levelled, and that the CENI act transparently, by 23 December it will be too late. Kabila will have guaranteed not democracy, like his campaign video says, but his own stay in power. DM

Stephanie Wolters is head of the Peace and Security Research Programme, ISS Pretoria