Democratic Republic of the Congo: The Transitional Constitution of April 1, 2003

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1 662 DEVELOPMENTS the RS location. This novel remedy broke the legislative logjam. The legislature accepted all but one of the names assigned by the Court, and in that one case adopted an acceptable name. This shows that the Court is prepared to follow up vigorously when there are delays in giving effect to its decisions and can usefully complement, as well as check, the work of legislatures. Democratic Republic of the Congo: The Transitional Constitution of April 1, 2003 Kai Peter Ziegler* The Democratic Republic of Congo background to the war peace and the powersharing agreements the Transitional Constitution and its characteristics institutions and security success so far prospects a model for other conflict-riven states Transitional constitutions are born of major national crises, such as secessions, the toppling of political systems, or war, including civil war. These situations do not lend themselves to resolution overnight but require huge and time-consuming efforts at pacification, confidence building, stabilization, and nation building. To achieve a reasonably stable, classical constitutional system at the outset of such a process is, most likely, an illusory hope. Accordingly, transitional constitutions are devised to provide legal frameworks for governing countries during periods of transition from crisis to stability. Though not a recent invention, 1 their use appears to have multiplied in recent years; since the beginning of the 1990s, many countries have had one, 2 are currently operating under one, 3 or are aspiring to one. 4 Measured against the standards of classical constitutions, the transitional varieties often appear deficient. They tend to lack democratic legitimacy or guarantees of the sort deemed fundamental, and they may be closer in their terms to political agreements than to legal instruments. Yet, measuring doi: /icon/moi044 * Assistant to Advocate General Juliane Kokott at the European Court of Justice, Luxembourg; former researcher at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany; Kai.Ziegler@curia.eu.int 1 E.g., Ghana had one from 1954 through 1957 and Germany s Grundgesetz of 1949 was intended to be one. 2 E.g., Eritrea ( ), Albania ( ), and South Africa ( ). 3 E.g., Iraq, Afghanistan, Somalia, the Palestinian territories, and the Democratic Republic of the Congo (DRC). 4 E.g., Somalia (currently operating under an interim constitution and aspiring to a transitional constitution) and Sudan (under a transitional constitution for a projected six-year period).

2 DEVELOPMENTS 663 transitional constitutions by classical constitutional standards is inappropriate, because they differ fundamentally in their intentions, their period of applicability, and the conditions over which they are meant to prevail and under which they must operate. Transitional constitutions must be tailored to their countries situations at a given point in time and to an even greater extent than is true of classical constitutions; in particular, they must address the interests of the parties to a conflict and provide them with sufficient incentives to abide by a design for peaceful transition. With these differences in mind, this essay will explore the institutional design of the Transitional Constitution 5 (TC) that the Democratic Republic of the Congo (DRC) adopted on April 1, Section 1 provides the context for understanding the power-sharing aspects of the TC, which is then described in section 2. The third section draws on both to assess the TC s prospects of success. 1. Background 6 The DRC is a country some four times the size of France, slightly less than one-fourth the size of the U.S. It has common borders with nine countries, 7 nearly all of which have experienced severe internal strife in recent years. Despite its rich base of mineral resources, decades of misrule, war, and illegal resource exploitation (particularly of Columbite-tantalite, or coltan, and the so-called conflict diamonds) 8 have resulted in such destruction of infrastructure and uprooting of populations that some 80 percent of the DRC s 50 to 60 million inhabitants now subsist on less than fifty cents a day. In power 5 Available at [ (last visited on May 11, 2004). 6 Except where indicated, information in this article has been collected from the CIA World Factbook, available at [ (last visited on July 6 May 11, ); from the Bureau of African Affairs, U.S. Department of State, Background Note: Democratic Republic of Congo, available at [ htm] (last visited on July 6, 2005 May 11, 2004); from BBC Online reports on the conflict ( ); from articles by The Economist, both print and online editions, on the conflict ( ); from Congonline, Histoire, available at [ histoire.htm] (last visited on July 6, 2005 May 11, 2004); from reports by the International Crisis Group on the conflict, available at [ (last visited on July 6, 2005 May 11, 2004); and from the UN Department of Political Affairs, Democratic Republic of Congo Background Inter-Congolese Dialogue, available at [ un.org/depts/dpa/prev_dip/africa/dem_rep_congo/fr_dem_rep_congo_background.htm] (last visited on July 6, 2005 May 11, 2004). 7 Angola, Burundi, Central African Republic, Congo, Rwanda, Sudan, Tanzania, Uganda, and Zambia. 8 See U.N. SCOR, Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, D.S (UN document S/2002/1146 (2002)).

3 664 DEVELOPMENTS since 1965, President Mobutu Seke Seko had kept Zaire, as it was then known, under a dictatorial one-party rule during the 1970s and 1980s, an era marked by corruption and nepotism. The global political changes of the 1990s ostensibly forced reforms upon him, but Mobutu, for the most part, only gave the appearance of compliance without allowing any genuine democratic reforms to be implemented. This contributed to growing internal and external tensions that developed into open conflict in Though little noticed in the West, the Congolese war has been by far the most deadly conflict since World War II, with casualties estimated to be about 3 to 3.5 million. Following the Rwandan genocide of 1994, Rwandan Hutu rebels 9 used refugee camps in the eastern part of Zaire as bases for incursions into Rwanda against the Tutsi government. 10 In 1996, Rwanda retaliated by occupying parts of the eastern territories of Zaire and began, with Uganda, to support eastern Zairian rebels who succeeded in toppling Mobutu in His successor, Laurent Kabila, changed the country s name to the Democratic Republic of Congo. Disappointed in Kabila, their former protégé, Rwanda and Uganda sought to unseat him as well but were prevented from doing so by foreign forces (from Zimbabwe, Angola, Namibia, Chad, and Sudan) that intervened on behalf of the Kabila government, at the last minute, in exchange for access to the country s mineral resources. In addition, a falling-out between the leaders of Uganda and Rwanda had led to the creation of two major rebel groups in eastern Congo. 11 By July 1999, fighting among the warring parties had reached a stalemate, and the DRC was divided into three de facto sectors held respectively by the DRC government and the two major rebel groups. When the military deadlock became apparent, a peace process began with a ceasefire agreement, signed in Lusaka; 12 however, it was consistently violated by all parties to the conflict. In January 2001, the Inter-Congolese Dialogue (ICD) was launched, leading, by the end of 2002, to the pullout of foreign troops and the so-called All-Inclusive Agreement (AIA) 13 governing the DRC s transition. By April 2003, the parties had agreed formally to endorse the AIA and the TC, a memorandum on military and security issues, and thirty-six resolutions adopted at the ICD s 2002 session. 9 The Hutu militias known as Interahamwe. 10 Led by the president of Rwanda, Paul Kagame, and his Front Patriotique Rwandais (FPR), or Rwandan Patriotic Front (RPF). 11 The Rassemblement Congolais pour la Démocracie (RCD) [Congolese Rally for Democracy- English translation], led by Azarias Rubwera; and the Mouvement pour la Libération du Congo (MLC) [Congo Liberation MovementEnglish translation], led by Jean-Pierre Bemba. 12 Available at [ (last visited on May 11, 2004). 13 Available at id.

4 DEVELOPMENTS The Transitional Constitution and the All-Inclusive Agreement The TC and the AIA are the centerpieces of this peace package; the elements of major interest may be grouped into (a) general provisions, (b) institutions, (c) security forces, and (d) transitional provisions. This review will focus on institutional design and the power-sharing elements. At first glance, one may remark on the TC s striking similarities to the French constitution of These similarities are indirect, however, because it was the Senegalese Constitution that served, along with Zaire s constitution of 1962, as a model for the drafting committee. 14 Senegal, like most francophone countries in Africa, has a constitution modeled on that of France General provisions The preamble announces the TC s program: in it, the parties declare their intention to strive to build a united, harmoniously integrated nation and to achieve this through a peaceful transition based on consensus, inclusiveness, the avoidance of conflict, and a just distribution of governmental powers. That is to say, the central aim of the document is to keep the country together by accommodating all parties. Article 1 declares that the TC has been elaborated on the basis of the AIA and that these two documents, taken together, will determine the transitional exercise of power. 15 Indeed, the AIA contains both the Constitution s fundamental principles, which are spelled out in much more detail in the TC, and supplementary elements, such as the formulas for distribution of posts among the parties. The two documents form an integrated whole and must be read together. According to article 5, the DRC is not a federal but, rather, a unitary decentralized entity, comprising the capital Kinshasa and ten provinces. The organization, the functioning, and the distribution of powers among the government entities are to be detailed in an organic law Institutions Title IV, on the organization and exercise of power, deals chiefly with the DRC s transitional institutions and the distribution of powers among them. Critically, it also determines, in conjunction with the AIA, the allocation of 14 Chaired by the U.N. Secretary-General s Special Envoy to the DRC, Moustapha Niasse (Chairman of the ICD Political and Legal Commission), the drafting committee consisted of technical advisers El-Hadj Mbodj and Alain Sigg, and Cédric Mizel (Rapporteur of the ICD Political and Legal Commission), all of whom had participated in the process since Unless indicated otherwise, articles refer to the Transitional Constitution. 16 Organic laws require a qualified majority and mandatory certification of their conformity to the TC; see infra section

5 666 DEVELOPMENTS power among the parties to the peace process primarily between the DRC government and the two major rebel movements but also among smaller armed rebel groups, 17 the peaceful political opposition, 18 and civil society elements. 19 In balancing these relationships, Title IV contains by far the most interesting provisions The executive branch The TC addresses the branches in order of importance, starting with the executive. Providing for a unique presidential system, it seems to have been devised to take into account the sensitivities of multiple leaders. Rather than featuring two parts, one on the presidency and the other on the government, this section is divided into four paragraphs, on the president, the presidency, the vice presidents, and the government, respectively. The incumbent president, according to article 65, will retain the office for the entire period of transition. Should the post become vacant, article 66 is designed to maintain the balance struck among the parties by giving the post to the vice president belonging to the DRC government party (see below for an explanation of allocation of vice presidents). Articles 69 through 79 lay out the president s powers: he is the head of government and supreme commander of the armed forces, empowered to declare war and states of emergency, and to appoint most of the high-ranking officials, including the provincial governors, members of the High Council of the Judiciary, and judges. Almost all of these powers are, however, held in check by means of institutional arrangements that ensure the involvement of the other parties in the substantive decisions. Article 83 creates four vice presidents, one each for the DRC government party, the two major rebel movements, and the political opposition. The two rebel leaders assumed the posts assigned to their parties; their replacements are to come from within the same organizations. The only power specifically attributed to them is that of chairing four government commissions that report to the Council of Ministers and coordinate and supervise implementation of the council s decisions in their respective areas. At first sight, therefore, their power seems very limited. This is not the case, however, as will become clear when looking at the presidency and the government. The presidency, comprising the president and the four vice presidents (art. 80), is to provide the necessary leadership by dealing with questions of governmental management through private coordination meetings 17 The Rassemblement congolais pour la démocratie/mouvement de libération (RCD ML), or [Congolese Rally for Democracy Liberation Movement]; the Rassemblement congolais pour la démocratie/national (RCD N), or [Congolese Rally for Democracy National]; and the Maï- Maï., a militia group. 18 Known as the Opinion politique [political opinion] or Opposition politique [political opposition]. 19 Known as the Forces vives [vital forces].

6 DEVELOPMENTS 667 preceding the formal meetings of the governmental Council of Ministers (arts. 81, 82). This management function appears to be sorely needed, considering that the government consists of a five-member presidency, thirty-six ministers, and twenty-five vice-ministers (art. 89 and AIA annex I A), which is to say, sixty-six persons who discharge their governmental functions through the regular meetings of the Council of Ministers. These meetings, involving more than half as many participants as the 120-member Senate are probably more like governmental parliament sessions than cabinet meetings. Sensibly therefore, article 96 provides the president who presides over the Council of Ministers and the vice presidents with a governmental secretary-general to assist them in preparing and coordinating the council sessions and the governmental follow-up, as well as the coordination meetings. Why have the TC and the AIA created such a large number of ministerial posts when this is bound to hamper efficiency? And, especially, why have they provided for the peculiar institution of vice-ministers? The large number of posts was probably intended to accommodate the many leading figures of the parties, all of whom doubtless aspired to high positions. In addition, it facilitates balanced representation: each of the four main parties holds seven ministerial and four vice-ministerial posts, the three smaller ones each have two ministerial and two vice-ministerial posts. The central idea in the creation of vice-ministers appears to be that of reciprocal checks, as seen in the distribution of posts. For instance, the AIA allocates the office of minister of defense to one rebel group, that of vice-minister of defense to another; the minister of the interior to the DRC government party and that of the vice-minister of the interior to a rebel group. While the text of article 91 remains ambiguous, actual practice seems to point to consensus decision making among ministers and vice-ministers. 20 At least, no party can try to abuse the powers of its portfolio without the others being alerted and able to intervene. Finally, the ministers appear to be triple-checked, as it were, through the government coordination commissions headed by the vice-presidents. In any case, the main task of the ministries is not to govern their portfolios autonomously but, rather, to implement the governmental program of action established by the Council of Ministers (art. 91). According to articles 93 and 94, the government determines and conducts national policy, executes laws and decrees, and directs the administration as well as the security forces. As to responsibilities, article 95, paragraph 1, declares the government accountable to parliament, although paragraph 2 strips parliament of any 20 See The Economist (print edition), Congo Not as bad as dad, THE ECONOMIST, Nov. 513, 2003 at 46, available to subscribers at [ id= ], according to which a vice-minister on mines could overrule a decision of the minister on mines to block a dubious export of diamonds.

7 668 DEVELOPMENTS means of recalling the government during the transition; like the president, it is meant to stay in place for the entire transition period. As noted below, however, there are milder forms of legislative checks available. 21 Putting these pieces together, we see the power within the executive branch taking shape as follows: the government, as a whole, is far too large to take decisions effectively; the actual power to direct policy resides in the presidency, a sort of directorate, where the leaders of the main parties sit together. The remainder of the government is peopled with the followers of the various factions, loyal to their respective leaders, who enact the presidency s decisions and carry out agreed-upon policies or follow their leaders directions, all the while cross-checked by one another. An interesting figure in this chess game is the government s secretary-general, who may in practice depending upon the personality of the officeholder wield substantial power, given the massive task entailed in coordinating such a government The legislative branch A national assembly and senate are the building blocks of the TC s legislature. To a great extent, however, the two houses have been assigned tasks other than the classical responsibilities of concurring in legislation and imposing checks on the executive, and thus their remit extends beyond the traditional limits of the legislative branch. The National Assembly is composed of 500 representatives, at least twentyfive years of age, to be chosen for the entire transitional period (between two and three years) on the basis of balanced provincial representation (arts. 99, 100). As in the case of the executive, they are to be selected by the parties and not elected, as one might have presumed according to the AIA s annex I B, which allocates posts according to the importance of the groups. The National Assembly is headed by a bureau comprising a president, three vice presidents, a rapporteur, and three assistant rapporteurs (art. 102); these posts, again, are assigned by annex I B to the various parties so as to counterbalance responsibilities. The internal functioning of the assembly will be detailed in a bylaw on rules of procedure that may only enter into force following confirmation of its constitutionality by the Supreme Court (art. 103). Finally, the National Assembly s competences are to enact laws, to supervise the government, to follow up on the execution of the resolutions of the ICD, and to adopt a draft constitution for submission to a referendum (art. 98). The Senate consists of 120 senators, at least forty years of age, to be designated by the parties on the basis of the same principles applicable to the National Assembly (arts. 105, 106, and AIA annex I C) that is, the senators do not represent territorial entities, as is ordinarily the case, but, rather, represent the same designated constituencies as the representatives. With a structure and rules for internal functioning identical to those of the National 21 See infra and

8 DEVELOPMENTS 669 Assembly (arts. 108, 109), it is distinguished from the other body by the tasks assigned: article 104 mentions, first, a mission of mediating political conflicts among institutions ; then it charges the Senate with elaborating the constitutional draft to be adopted by the National Assembly; and, only in third place, does it declare that the Senate must concur in enacting legislation, but only with regard to certain explicitly enumerated subjects. The two houses of this so-called legislature share the same structure; the same mode of selection, absent elections; the same interests represented; and the same system of overlapping responsibilities in the bureaus. It follows that this legislature is not intended to be an instrument of popular representation. Rather, it has been created by the parties according to agreed power-sharing principles and vested by them with the competences that need to be exercised by some sort of institution in order to achieve the intended transition. The differences between the houses involve size and age of membership. The legislative functions lie essentially with the larger body, the National Assembly, while the Senate, consisting of elders, functions as a constitutional assembly, elaborating the constitution that will be in place after the transitional period. The mediation task assigned to the Senate looks somewhat bizarre, since it is hard to see how a 120-member entity can mediate anything; in practice, however, a committee of respected elders may form to carry out those functions The distribution of powers between the executive and legislative branches Article 112 allows parliament to put questions to the government in various forms, to command its appearance, and to institute commissions of inquiry that may conduct hearings. Yet, as indicated earlier, 22 the restraints are quite general, and article 112 expressly excludes any censure of the government by the parliament. Inspired by the French-Senegalese constitutional model, article 118 restricts parliament s lawmaking powers to an enumerated list of subjects and allows it to determine fundamental principles only. All areas not expressly enumerated are left to direct regulation by the executive branch (art. 120). Each branch may defend its lawmaking realm against the other, if necessary, before the Supreme Court (art. 127). Both the government and individual legislators may initiate the lawmaking process (art. 125). Where the president disagrees with the outcome, he or she may resubmit a bill or specific articles to parliament for reconsideration; however, parliament may reenact the unchanged bill by simple majority, while any modification submitted by the president requires a two-thirds majority (art. 130). Thus, this presidential power does not amount to a veto of legislation. 22 See supra section and 2.1, respectively.

9 670 DEVELOPMENTS A special procedure is provided for in article 121 requiring organic laws to be passed by an absolute majority of members in both houses and to be submitted to the Supreme Court for certification of their conformity to the TC before entering into force. Other laws may be submitted to the Supreme Court for prior certification of constitutionality, but this is not required. The relatively tight limitations of legislative power, especially the check on the government, seem justified. First, the legislature is not elected and is not truly representative of the Congolese people; its legitimacy derives only from its size and the geographical balance of its representation. However, the government is also large and similar in composition. Thus, it does not seem particularly warranted for the legislature to have an especially firm rein on the government, and, thus far, the division of legislative powers seems acceptable. And, again, one should note the intention of the parties to prevent parliament from altering the balance struck among them by requiring the prior submission of important legislative acts to the Supreme Court The judicial branch The judiciary is, by design, independent of both the legislative and executive branches and subject only to the law; the president is the guarantor of this independence, assisted by the High Council of the judiciary (art. 147). Judges are appointed and recalled by the president upon recommendation of the Superior Council. Doubts as to the independence of the judiciary may arise when one remembers that it is the president who appoints the members of the Superior Council; 23 however, the TC requires the president consult with both the vice presidents as well as the government on those appointments, and this should provide sufficient safeguards. Conceived of as a three-tier structure, the TC s judiciary is headed by a single Supreme Court (art. 148), which also exercises constitutional court functions. In addition to the prior determination of the constitutionality of laws, the TC provides also for an ex post determination. Article 150 states that the Supreme Court shall also be the judge of elections and the final interpreter of the law and of the Constitution. Since the TC does not contain express provisions for the adjudication of disputes among the constitutional organs (other than those on the distribution of legislative powers), one may presume either that this power is implied in the Supreme Court s power of final interpretation of the TC or in the mediation task entrusted to the Senate which seems unlikely in view of that organ s unwieldy size. Endowed with the power to scrutinize laws, to interpret the TC authoritatively, and to review determinations on all major issues beforehand, the Supreme Court is constituted as a watchdog over parliament and a guardian of the agreement made among the parties. 23 See supra

10 DEVELOPMENTS Security forces The security forces comprise a national police and the Congolese armed forces. Placed under the authority of the minister of the interior, the police have primary responsibility for maintaining internal security and order (art. 173). While the primary task of the armed forces is to guarantee external security, they must also contribute to economic, social and cultural development, and protect persons and goods (art. 178). These surprising additional duties may be rooted both in the fact that the army has capacities that civil administration lacks and, once again, in the desire for reciprocal checks through an overlapping of powers. Security is the most sensitive issue, and this overlap of competences ensures that all parties have a say in matters of internal order through their ministers, vice-ministers, and so forth. Apart from these two state-based security institutions, militias and private armies are prohibited (art. 182). The Superior Defense Council, composed of the president, the vice presidents, the security-related ministers, and the heads of the armed forces, is charged with general oversight of the security forces and with rendering opinions on the disarmament of militias as well as on the restructuring and integration of armed rebel groups into the army (arts ). The section on the security forces is surprisingly short, given that these are questions of primary importance. Since the armed rebel militias are the rebel leaders power bases, and all armed forces other than the two security institutions will be illegal, the integration of the rebels into a common army is among the key elements of pacification and also one of the most difficult issues. For obvious reasons, detailed security arrangements are not made public; squabbles over high-ranking army positions suggest the difficulties, and the great number of checks and balances in this area is telling. Security responsibilities in each institution are shared both between a minister and a vice-minister, each of whom represent a different party to the process, and between the two institutions due to their overlapping functions. They are also shared with the Superior Defense Council, with a government committee (headed by a rebel vice president), with the government as a whole, and with the president as supreme commander. Nevertheless, the implementation process seems to be working Transitional provisions The transitional period is to last two years, allowing for two six-month extensions, but only if these should prove necessary for the purpose of preparing elections (art. 196). By the end of that term, the future constitutional system must be in place and functioning. The AIA created two additional institutions designed to secure the transition to the transition, that is to say, the establishment of the TC s institutions. Annex III provided for a follow-up commission, composed of high representatives of all parties to the ICD, to supervise the implementation and interpretation of the AIA and mediate any disagreement among the

11 672 DEVELOPMENTS signatories. Annex IV set up an international committee in support of the transition. In addition to carrying out advisory functions, this committee arbitrates, and eventually decides, disputes among the parties. This bilevel supervision during the installation of the transition was fitting, since it not only empowered the parties but also provided support to keep them from floundering in this early, difficult phase. 3. Outlook Is the TC sufficiently tailored to the DRC s situation? Is it workable, and what chances of future success does it stand? May it serve as a model for resolving similar crisis? The current outlook is positive; matters moved forward rapidly following the TC s adoption on April 1, By August 2003 the transition was fully underway, and the TC s institutions were up and running. By the end of 2003, the deployment of the national police and army had made headway in areas previously held by militias, the DRC and Rwanda had reached agreement on jointly curbing the Rwandan Hutu rebels in the eastern territories of the DRC, and the first rebel units had been absorbed into the army. Though there are concerns regarding President Joseph Kabila s political will 24 and a strange coup attempt occurred, and was foiled, at the end of March 2004 (reportedly committed by members of Mobutu s former guards) 25 the transition to the transition has gone remarkably well and the transition period, as of this writing, is off to a good start. Indeed, the institutional design for power sharing among the parties to the conflict seems well tailored to the situation and the interests involved. The presidential system allows for President Kabila to save face by retaining his position as head of state and for the rebel leaders, in their positions as vice presidents, to be on an equal footing with the members of the old regime. The new government is constructed so as to be broadly inclusive, and the entire system is woven through with checks that should make serious abuses of power among the parties virtually impossible. The mechanisms by which the Senate and the National Assembly are to elaborate the future system allowing them sufficient distance from the leadership while commanding sufficient influence over the followers of each faction to ensure that the solutions reached are acceptable to them bode well in the hope of achieving something more than just another power deal among the leaders. Two or three years is a relatively short time in which to create the conditions for a durable new constitutional system, but the careful design of the 24 Laurent Kabila s son, who succeeded to the presidency in January 2001 after his father was killed in a failed coup attempt. See The Economist (print edition), Congo Not as bad as dad, supra note See BBC Online Report, Coup attempt in DR Congo capital, March 28, 2004, available at [

12 DEVELOPMENTS 673 present transitional system may help pave the way, and the relatively smooth inception of the transition itself is promising. If it is true that efficient and disinterested government, however badly needed, is not to be expected from the transitional system, one must bear in mind that disinterestedness was not available this time around, just as genuine popular representation would not have been a realistic aspiration. The central tasks were, and still are, to end the war and lock the parties into a process of peaceful transition. Because the parties appear to be playing by the rules, the negotiators and drafters may be said to have done a fine job in balancing all the interests. So far, so good. In the medium term, matters will depend on the development of the political vested interests, that is to say, on whether all parties, including the foreign backers of the rebels, continue to perceive that they have more to lose than to gain from reverting to war. Toward the end of the transition period, if the process progresses that far, greater challenges may be anticipated. Should a truly democratic system be put into place, elections will maintain some in office and eject others from the central government. Those who foresee losing their spoils, gained throughout the process, may find it more appealing to ruin the process than to abide by democratic rules. As it is essential to keep all the major parties locked into this process, a federal system that provides for regional, independently elected governments may be better suited to the DRC than a unitary decentralized system. The federal option would mean that those who did not make it into central government could still wield power in regional governments. Clearly, a transitional constitution cannot resolve the underlying political conflict; the best it can do is mitigate the strife and steer the political exercise toward a peaceful resolution. By these standards, the DRC s Transitional Constitution is admirable, and its principles may serve as a model for other conflict-ridden African nations. European Union: Compulsory military service Beate Rudolf* European Community treaty compulsory military service and scope of Community law equality of men and women Alexander Dory v. Federal Republic of Germany 1 In a long-awaited decision, the European Court of Justice (ECJ) held that European Community law is inapplicable to compulsory military service doi: /icon/moi045 * Junior professor, Free University of Berlin, Faculty of Law; brudolf@zedat.fu-berlin.de 1 Case C-186/01, Alexander Dory v. Federal Republic of Germany, [2003] E.C.R. I-2508 (decided Mar. 11, 2003).