Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative in consultation with Congolese activists. The views and opinions expressed here do not necessarily reflect the views and opinions of the International Refugee Rights Initiative or of the Open Society Justice Initiative.

As Congolese head to the polls on November 28, 2011 to elect a new president, the front-running opposition candidate in the previous election, Jean-Pierre Bemba, sits in a jail cell in Schevingen in the custody of the International Criminal Court (ICC). Bemba has not, however, taken his incarceration to mean that he should be sidelined and has pushed his own candidacy. The fact that he has done so from an ICC jail cell, however, is having an impact on his viability as a candidate and the state of the opposition as a whole. 

As was mentioned in Wakabi Wairagala’s recent post, “Can Bemba Run for Congolese President from his ICC Jail?” Bemba has convinced his party, the Movement for the Liberation of Congo (MLC) to nominate him as their presidential flag-bearer. In calling on the party to nominate him, Bemba, in a written address to the party’s national congress promised victory: “I want to assure you that my willingness to serve Congo is intact, I will not give up. I do not fear the justice of men, only the justice of God is important to me…my candidacy for the presidential election will be, if you agree to it, the candidacy of certain victory.” 

Although there is much speculation about the practical possibility of Bemba standing, the party’s official line is that his effort will be successful. The party spokesman, Mr. Jean-Paul Busa, the executive secretary of the MLC, was quoted by Uganda’s Monitor newspaper as saying, “We are sure he will be released in time.”

It seems, however, that this is now highly unlikely. Under Congolese electoral law, candidates must register in person in the country. The defense had requested that Bemba be granted exceptional release in order to travel to the DRC on a private jet, using his own means, and staying in Congo for only an hour. These conditions were reported in the Congolese newspaper Le Soft International and presented as all but agreed by the court, which built up hope in the heart of MLC supporters. One Congolese commentator, Jacques Matand, noted that “[a]mong the Congolese community in the UK, the return of JP Bemba [to Congo] is a certainty.

Despite these reports, on August 16, 2011, the Chambers rejected this contention, making it clear that provisional release was intended for humanitarian purposes in “extraordinary circumstances.” The Chamber concluded that electoral registration “is not the type of circumstance that warrants such extraordinary relief.”

This decision has likely disappointed Bemba’s supporters, the more so as the provisional release effort was presented as certain to succeed. The decision can still be appealed, and some, like Matand, reflect continued hope, “a little more patience is needed to know the result of the appeal on the provisional release of Jean Pierre Bemba.” Others express doubt, saying it is unlikely that such an appeal would be in time as the period for registration as a candidate already got underway on August 18. The Congolese NGO L’Association pour la Promotion de la Démocratie et du Développement de la République Démocratique du Congo (APRODEC) has reported that “Bemba probably won’t be a presidential candidate.”

Even if he is not able to formally run, however, Bemba retains a potentially powerful role as a kingmaker in the Congolese political scene. Bemba commanded 42 percent of the vote nationwide in the 2006 presidential contest and has a strong regional base of support. According to one Congolese activist, Bemba carried nearly 97 percent of the vote in his home province of Bangala in Equator. Opposition candidates are greedily circling this voter pool, hoping to add this to their base of support. Indeed, the timing of Etienne Tshisekedi’s announcement of his candidacy, just days before the start of Bemba’s trial, was likely an effort to present himself in contrast to the accused as a viable candidate.

Of course, the political landscape has changed since 2006. Tshisekedi boycotted the previous contest, and Bemba benefitted from his absence. However, Bemba’s incarceration has, according to analysts, not undermined his capacity to command support. In the words of one activist, “the idea that Bemba is a criminal is not well accepted at the level of Congolese public opinion. Many think that the Bemba case is a political spectacle, the goal of which is to exclude him from the political scene, and more precisely, the presidential elections currently in course.” The fact that Bemba has maintained leadership of the MLC is additional evidence that he retains political capital and has left other opposition candidates courting his favor. In the words of one activist, “a number of big men are jockeying for position at the door of his cell” a reference to the numerous visits that Bemba has received from leading opposition candidates.

Bemba’s support is especially critical in efforts to find a “common candidate” in a fractured opposition field. The urgency of fielding a joint presidential candidate was intensified following the passage in early 2011, of a constitutional amendment moving from a two round voting process – in which the top two competitors move to the second round if no candidate gets more than 50 percent of the vote in the first round to one in which a candidate can win with 15 percent or 20 percent as long as he has more than his competitors. This amendment clearly benefits the incumbent against a fractured political opposition.

The first to pay Bemba a visit was Vital Kamerhe, a former member of the presidential party, who has since declared himself to be an opposition candidate. Reporting on Kamerhe’s visit to The Hague in September 2010, the news magazine Jeune Afrique reported that his calculus was “simple.” Kamerhe, they noted, is popular in the East but has no chance of winning without a foothold in the West, a foothold which Bemba’s support could easily give him.

Following this, Etienne Tshisekedi, the veteran political opponent and leader of the Union for Democracy and Social Progress (UDPS) paid a visit to Bemba at the ICC in July 2011. According to his party spokesman, quoted in Radio Okapi, Tshisekedi and Bemba “spoke of the problems in the country. They agreed that the country finds itself in a catastrophic situation… For [Bemba] the moment has come for a political change in Kinshasa.” Despite this statement of concord, little appears to have been concretely agreed.

A number of lesser known candidates have also shown up. Oscar Kashala, the candidate who came in fifth in the 2006 presidential contest, passed by. Léon Kengo wa Dondo is the new president of the new Union of Forces for Change (UFC) and president of the Senate has also been rumored to have visited Bemba. That meeting reportedly took place in secret, with Kengo visiting Bemba incognito on Wednesday, August 3, in The Hague, according to AfricaNews, a respected source. The news was neither confirmed nor denied by the ICC’s representatives in Kinshasa, saying only that visits to the detainee are not that restricted.

In the words of a Congolese activist, “Never has a Congolese convict known such seduction.” It is true that the current political environment has made strange bedfellows. Kamerhe was an adversary of Bemba’s in 2006 in the context of the role that he played in supporting Kabila. Although Tshisekedi has remained firmly in the opposition camp, he boycotted the 2006 elections and shunned those in his party who supported Bemba.

Questions also abound about what Bemba might ask political contenders for in exchange for entering into an alliance. If an opposition candidate were to win with MLC support might the DRC government use its weight to push for his liberation. Would this involve political opposition to the ICC as we have seen from the government of Sudan? Would it involve legal intervention in Bemba’s case? Would they try to assert national jurisdiction over the case despite the fact that the crimes with which Bemba are accused took place in the Central African Republic? It remains to be seen.