MUHINDO MULUMBI’S ELECTORAL LAW PROPOSAL TO ALLEVIATE THE DEBATES ON ORGANISING GUARANTEES AGAINST ELECTORAL FRAUD

Here are some of the innovations of the proposed electoral law by Maître MUHINDO MULUMBI :

The proposed law criminalises electoral fraud and corruption by making these crimes indefeasible. Odious crimes against humanity are sometimes the consequence of electoral fraud and corruption. It is therefore necessary to apply the theory of equivalence of conditions to the responsibility of the key actors of the electoral process as to those who will have corrupted them. According to this theory, the one who has compromised in an illicit act is liable even for the accidental consequences Qui in re illicita versatur, tenetur etiam pro casu He who wants the antecedent, wants the consequence. Whoever has provoked fraud also provoked the other crimes in the country and therefore does not escape, by finesse of mind, the theory of adequate causality in matters of responsibility;

The proposed law advises the seizure of the assets of the leaders of the National Independent Electoral Commission and constitutional judges who will have supported electoral fraud and corruption. These fortunes put into the public treasury will help in the organisation of future elections. In this way, Article 5 of the Constitution, which attributes sovereignty to the people from whom all power emanates, will be given meaning. Those who go to the National Independent Electoral Commission to look for fortunes (money) will be able to return from the fleeced (stripped of their assets if they are corrupted or bribe) ; 

The proposed law creates an Appeal Chamber within the Constitutional Court, in the same manner of the International Criminal Court and other international courts. This proposal seeks to solve the problems of validation, invalidation and re-invalidation experienced in 2019 before the Constitutional Court. One and same judge was not dismissed after his sentence;

The proposed law abolishes the electoral threshold, in that it violates the freedom of association (enshrined in Article 20 of the Universal Declaration of Human Rights of 10 December 1948, Article 10 point 2 of the African Charter on Human and Peoples’ Rights and Article 37 of the DRC Constitution, all these texts of higher authority than internal laws in the DRC, such as an electoral law, according to Article 215 of the Constitution).

The proposed law prohibits candidacies for different elections being held on the same day (practices contrary to the promotion of the youth);

The proposal advocates for the abolition of candidacies with family substitutes. These candidacies violate articles 4 and 26 combined of the International Covenant on Civil and Political Rights of 16 December 1966 and article 13 of the Constitution, which all prohibit discrimination based on social, birth and family origin. Family is understood to mean that, in addition to persons related by blood and descended from a common ancestor, cognation, alliance and adoption ;

The proposed law aims to adapt the electoral money guarantees to the current economic context of the world and leaves the discussion open ;

Example of some articles.

Article 79 :

By electoral fraud, we mean all the irregularities that take place during an election and that are endorsed by the key actors of the electoral process at all levels. Electoral fraud concerns electoral operations that are themselves contrary to this law, notably practices that violate the rules of compilation and counting, judgement or ruling made without consideration of evidence with a view to diverting the expression of votes or unduly attributing them to a candidate, the deletion of results on the website of the National Independent Electoral Commission, the destruction of ballot papers in order to make any investigation impossible.

Electoral bribery is defined as the offer or acceptance of offers of promises, the receipt of gifts or presents to facilitate electoral fraud or influence the outcome of elections at any level.

Electoral fraud and bribery are indefeasible crimes.

Article 88 bis :

Any person who is responsible for receiving, completing or counting the ballot papers containing the votes of citizens, who removes, adds to or alters the ballot papers, or knowingly reads out a name other than the one written, shall be punished by five years of imprisonment, a fine of 10,000,000 Congolese francs or one of these penalties only.

The same penalty shall be applied to any person who, when asked by a voter to write or mark his vote, writes on the ballot paper or voting machine another name than the one designated.

The violation of the ballot and its rules of compilation and counting made either by the members of the polling station, or by the agents of the authority in charge of the guarding the not-yet-counted ballots, will be punished by ten years of imprisonment and seizure of their properties in any hands they might be, with complementary punishment of disqualification for access to any public function. If the guilty ones were carrying weapons to violate the election or to facilitate the non-counting of votes, only the penalty of imprisonment is increased to double.

Article 89 :

Whoever, by gifts or donations in money or in kind, by promise of gifts, favours of public or private employment or other particular advantages, made with a view to influencing the results of the polls or votes, to have false results proclaimed, to proceed to the suppression of the results on the website of the National Independent Electoral Commission, the destruction of the ballot papers in order to make any investigation impossible, will be punished by 10 years of imprisonment and the seizure of their property in any hands they might be, with the additional penalty of disqualification from holding any public function.

The same penalties will be imposed on those who have accepted or solicited the same gifts, donations or promises, in particular the leaders of the National Independent Electoral Commission at national level and the Constitutional Judges who have participated in the acts mentioned in the previous paragraph to alter the final results of the polls or the votes.

 

Maître MUHINDO MULUMBI Jackson, Lawyer at the North Kivu Bar.

+243995 88 42 42 (WhatsApp)

muhindomulumbi@gmail.com