The efforts of the President of Burundi to completely abolish constitutional presidential term limits through a flawed process led by a commission exclusive of critical political and civil society groups is undermining the fragile security situation. The government should abandon the unilateral initiative and rejoin inclusive peace processes – writes Cyriaque Nibitegeka.
Following the political and constitutional crisis in 2015 triggered by the incumbent president’s move to run for a third term, Burundi has been undergoing a constitutional reform process as part of broader efforts to address socio-political and security challenges. A National Commission of Inter-Burundian Dialogue was established and submitted its initial report in August 2016, including a recommendation to remove presidential term limits. This piece discusses the process, content and next steps in the ongoing constitutional reform initiative.
The current Burundi Constitution crowned a long peace process after a decade of civil war. The war broke out with the assassination, on 21 October 1993, of Melchior Ndadaye, the first democratically elected HutuPresident. After this tragic event in Burundian history, some members of the Hutu majority ethnic group that had been excluded from exercising political power by the Tutsi minority, took up arms to fight against the Tutsi-dominated army.
In 1998, after the war had already caused hundreds of thousands of deaths, mainly civilians, peace talks started, successively under the auspices of former Presidents Julius Nyerere of Tanzania and Nelson Mandela of South Africa. On 28 August 2000, the Arusha Agreement for peace and reconciliation was signed. According to the Agreement, political, ethnic, and regional and gender criteria would be used to avoid imbalances in political, security and other sectors. The new national defense force would comprise 60% officers from the former government army and 40% from rebels. Moreover, no single ethnic group could constitute more than 50 percent of the defense and security forces. In addition to securing minority rights, the Agreement and the current Constitution preclude any single ethnic group from holding more than 60% representation in cabinet ministries, and in diplomatic and consular missions. The same ceiling applies to institutions supporting democracy such as the National Electoral Commission, the Constitutional Court, National Assembly, and National Commission on Human Rights.
Following the Arusha Agreement, a transitional constitution was promulgated on 28 October 2001 to govern for a period of 36 months. During that period, a Comprehensive Cease-Fire Agreement between the government of Burundi and the National Council for the Defense of Democracy-Forces for the Defense of Democracy (CNDD-FDD), the then main Hutu rebel group, was concluded on 16 November 2003. The rebel group acquired the status of a political party and its members joined public institutions. The peace process culminated in the integration of the Arusha principles in a post-transition Constitution promulgated on 18 March 2005, the one currently governing the country, which imposes two presidential term limits. In the same year, the first post transition parliamentary elections were organized, which the CNDD-FDD overwhelmingly won. Parliament then elected Pierre Nkurunziza as president, a once-off arrangement to be replaced with direct popular elections. In the beginning of the CNDD-FDD’s regime, the ethnical inclusiveness and the reassuring political discourse built the hope for Burundians to get rid of the painful past and old antagonisms.
The second general elections were held in 2010. The CNDD-FDD received 64% of the vote in the local elections, denounced by opposition parties for ‘massive electoral fraud’. When opposition demand for the cancelation of the elections was not met, most parties boycotted the remaining elections, resulting in overwhelming victories for the ruling party – 91% of the vote in the presidential contest, and 81% and 94% seats respectively in the National Assembly and the Senate.
The opposition coalition (Alliance des Démocrates pour le Changement au Burundi, ADC-Ikibiri) formed in the aftermath of the 2010 electoral crisis to challenge the CNDD-FDD caused the radicalization of the ruling party. The radicalization intensified in 2014 when debates on whether President Nkurunziza was allowed to run for another term surfaced. In the context of these political developments, the ruling party began to consider the Arusha Agreement and the resulting constitution as major hurdles to the quest for a third term and greater political control. Indeed, in 2014, there was an attempt to amend the Constitution chiefly to allow the incumbent president to run for a third term. The attempt was thwarted by a single vote in the National Assembly due to failure to secure the required 4/5 majority, as some members of the Assembly, traditionally allied to the government, withdrew their support at the last minute.
Following the failure of the proposed amendment, the President approached the Constitutional Court to interpret the Constitution on whether the first term, in which he was indirectly elected by parliament, counted as part of the two term limits. The rationale for the choice to resort to the constitutional amendment process first, rather than the Constitutional Court, can only be that the President was convinced from the start that he was not constitutionally eligible for another term. In May 2015, the Court found that the two term limits only apply for popularly elected presidential mandates. The decision, which was allegedly passed under government pressure after the Vice President of the Court fled the country, enabled the President to circumvent the constitutional term limits. Following the decision of the Court, and a failed coup attempt led by a former ally of the President, Nkurunziza won a third presidential term in July 2015 in which all the major political partiesboycotted the elections, amid widespread protests.
Even though the opposition coalition officially boycotted the polls, candidates’ names remained on ballot papers and some of them won seats. CNDD–FDD obtained 77 of the 100 contested seats. The opposition coalition, Amizero y’Abarundi, formed by unrecognized wings of the National Liberation Front (FNL) and the Union for the National Progress (UPRONA), respectively led by Agathon Rwasa and Charlers Nditije, won 21 seats (despite the boycott), and UPRONA (pro-governmental wing) obtained two seats. In order to meet the constitutional imbalance of seats between Hutus and Tutsis and the 30% quota for women, 21 members were co-opted after the elections. In the final count, the ruling party obtained 86 seats, while the main opposition coalition secured 30 seats, UPRONA two seats, and the Batwa ethnic group three representatives. Of the 30 lawmakers from the coalition Amizero y’Abarundi, only 23, headed by Mr. Agathon Rwasa, accepted to take up their seats. Moreover, Mr. Rwasa accepted to take up the position of Parliament’s Deputy Speaker. Since then, he has been acting as a ruling party ally, rather than an opposition leader. In the Senate, the ruling party holds 36 of the 43 seats.
At the end of the first year in office for the third term, President Nkurunziza is sending clear signals through the work of the National Commission of Inter-Burundian Dialogue that he is planning to remove the constitutional presidential term limit completely. The Commission put in place on 23 September 2015 submitted its first progress report on 24 August 2016. One of the main recommendations of the Commission is to delete the presidential term limit.
The Commission of Inter-Burundian Dialogue and the removal of term limits
When the project to amend the Constitution was initiated in 2013, it was obvious that all the political forces, including the ruling party, seemed to assume that the text of the Constitution precludes President Nkurunziza from eligibility for another term. The issue was made a matter of interpretation when the project to amend the Constitution failed in 2014 while President Nkurunziza was determined to seek a third term. However, after the candidacy of Nkurunziza was contested and the subsequent repression of opposition groups, hardliners in the ruling party started stating that the Constitution should be amended to adapt it to current realities. In addition, in his speech upon taking office on 20 August 2015, Nkurunziza mentioned his intention to commence a process to amend the Constitution, without referring to the focus of revision. At the same time, the international community was constantly calling for an inclusive political dialogue involving all stakeholders.
It is in this context that the Commission was created. Formally, the Commission has a two-fold mission: firstly, to conduct public debates on social, political, peace consolidation, security and economic development related issues; and secondly, to assess the following instruments: the Arusha Agreement, the Constitution, the Comprehensive Cease-Fire Agreement and the Charter of National Unity. In reality, however, the Commission was put in place with two objectives: to avoid an inclusive dialogue with the participation of opposition and civil society groups in exile, and to smooth the way for constitutional changes to enable the current President to stay in power indefinitely.
The composition of the Commission and the ways the debates have been conducted so far also give pause for thought. The Commission consists of 15 members: three from faith-based organizations, three from political parties in parliament, two from political parties outside parliament, two from civil society, and one each representing the Batwa ethnic group, the national defense forces, the national police, judges, and the youth forum. The President without prior consultation with the represented groups or parliament appointed the members. Moreover, the real opposition and civil society, living in exile in their great majority, were excluded in favor of pro-government political parties and organizations. The International Crisis Group noted that the work of the Commission has been a ‘monologue’. The Commission is the creation of and largely under the control of the President of the Republic.
Moreover, during the debates in different parts of the country, the floor was given only to convergent voices. The interventions largely expressed the same claims: amendment of the constitution, rejection of the Arusha Agreement and removal of presidential term limits. Some have also suggested that the President should stay in office until death or abdication as it used to be during the Burundian monarchy. In the words of Iwacu journal, the game was ‘skewed from the start’ as it was clear that the speakers were trotting out the same words as if they had learned them by heart.
Overall, the work of the Commission of Inter-Burundian Dialogue is likely to end up with changes to the Constitution to enable President Nkurunziza to seek as many terms as he wishes. There is no deadline for the Commission to deliver the final report, as its duration is six months renewable indefinitely. The final report will be handed at the relevant time to the President who personally controls and supervises the work of the Commission. There are no provisions on the way of implementing the recommendations of the Commission, other than that the President will make use of them as he sees fit. In view of the current political equation in Burundi where the ruling party dominates the parliament, with the larger faction of the main official opposition working with the ruling party, Nkurunziza has the means to fulfill his ambition. He is likely to obtain the 4/5 National Assembly majority and the 2/3 Senate majority necessary to pass a constitutional amendment.
While it is not clear when the Commission will finalize its final report, paving way for formal tabling of any amendments before parliament, the ruling party appears to be losing patience. On 11 October 2016, a formal agreement was signed by the Government of Burundi, the ruling party and 22 formally opposition political parties allied with the Government. The signatories agreed that term limits should be removed from the Constitution. The participants also concluded that the National Commission for Inter-Burundian Dialogue should be the only framework acceptable to discuss issues between Burundians, undermining the value of peace initiatives under the auspices of Tanzania’s former president Benjamin Mkapa.
Changes to the Constitution at a point when the main opposition is in exile and the international community is pressing for an inclusive dialogue, including under the auspices of the East African Community and the African Union, would be catastrophic and would undermine any chance to arrive at mutually acceptable negotiated solution among all stakeholders. In addition, the amendment of the Constitution would entail more significant consequences than if the 2013 attempt had succeeded. In 2013, it was a matter of seeking a third term. Now that President Nkurunziza is already serving his third term, it is an issue of removing presidential term limits altogether. There is, therefore, need for the international community, especially at the EAC and the AU level, to continue to pressure the Government of Burundi not to unilaterally change the fundamental law and, instead return to the negotiation table with a real resolve to find a way out of the crisis.
Cyriaque Nibitegeka is a lawyer, member of the Burundi Bar Association, and a former assistant lecturer at the University of Burundi.