Kinshasa: Two legal arguments motivate Ngobila’s decree designating mayors

[ANALYSIS] – Primo. The Head of State can no longer appoint burgomasters by Decree-Law pursuant to Article 126 of Law 08/016 of 7 October 2008 on the composition, organization and functioning of ETDs and their relations with the provinces. Second. The relevant provisions of the Law on the Free Administration of the Provinces give the governor the powers to exercise guardianship over ETDs.

Order No. 241 issued by the governor of the city of Kinshasa Gentiny Ngobila on August 20, 2019 permuting the mayors and temporarily appointing some mayors of the communes of the city-province of Kinshasa raised a legal debate within the opinion.

Voilà, encore une fois de plus, #Ngobila invente un nouveau droit. Une Permutation qui heurte l'ordonnance qui avait nommée et affectée ces Bourgmestre. pic.twitter.com/a84RiMKEZ8

— Red KOLIKITE (@langa_me) August 21, 2019

Those who felt that it was not competent to make such a decision concerning the mayors and their assistants are wrong as long as the legal and regulatory texts in force cover it.

Indeed, everything starts from the article 126 of the Law 08/016 of October 7, 2008 on the composition organization and functioning of ETD and their relations with the provinces.

If this article provides that, pending the local and municipal elections, the authorities of the different ETDs are managed in accordance with the provisions of Decree-Law No. 082 of 2 July 1998 on the status of the authorities responsible for the administration of territorial constituencies, it specifies however, it is the President of the Republic who appoints the bourgmestres.

Avoiding a constitutional scandal to the Head of State

Some jurists are of the opinion that the Decree Law is contrary to the current Constitution. Currently, the President of the Republic acts by Ordinance and can not appoint the mayors by decree or decree-law. Moreover, local and municipal elections are organized by an electoral law and a calendar.

Considering this aspect of things, analysts wonder, the president of the Republic would not violate the Constitution by appointing the mayors today? The constitutional scandal would not exist if the head of state personally appointed bourgmestres in the current context? Should we not accuse him of sending back sine die the organization of local and municipal?

Obviously, the constitutional context has changed. The head of state, acting by ordinance, can not issue a decree. In the face of this legal vacuum, lawyers are leaning towards an interim, transitional situation, where the governor can act by appointing interim mayors.

An action that can intervene in case of urgent or exceptional situation in order to reinvigorate the ETD under his tutelage in mal mal operation for lack of facilitators.

Respect for the Free Administration of the Provinces

Several provisions of the Law on the Free Administration of the Provinces tend to give reason to Governor Gentiny Ngobila, who is no stranger to the communes, of the decentralized services placed under his authority. They also define how to coordinate, oversee and ensure the continuity of public services of the state.

Article 28 states that « the governor has the public administration in the provinces. As such, all national and provincial public services in the province are under his authority. And under article 63 of the same law, « the provincial governor represents the central government in the provinces. It ensures, in this context, the safeguarding of the national interest, the respect of the laws and regulations of the Republic, and ensures the security and the public order in the province. « 

Moreover, article 64, which deals with matters within the exclusive competence of the Central Power, adds a new argument that the provincial governor coordinates and supervises the services that come under the authority of the Central Power.

In the exercise of its mission of representation of the central government and coordination of decentralized services in the provinces, the governor responds to the central government, adds article 65 of the same law.

Finally, Articles 95 and 96 state that « The provincial governor exercises guardianship over ETDs. And that « guardianship over ETDs is exercised through ex ante control or ex post facto control. « 

https://twitter.com/DMoano/status/1163950697341161474

As much as the governor exerts a control a priori on the communes and the power of supervision or disciplinary on the bourgmestres, as much it represents the central power in the province. As much as it has the power to swap these or to designate them provisionally.

In fact, Governor Ngobila’s decree mentions the need to reinvigorate the governance of ETDs and to fill vacancies created by legislative elections in the province and to ensure the continuity of the state, pending local and municipal elections.

This is the case of the communes of Maluku, Kinshasa and Gombe whose former holders have passed deputies.

Agnes KAYEMBE