No constitutional crisis: The core issues are social, political and economic

Saturday May 30 2015

Soldiers hold off protesters during a demonstration against President Pierre Nkurunziza’s bid for a third term in Bujumbura. AFP PHOTO | JENNIFER HUXTA

Soldiers hold off protesters during a demonstration against President Pierre Nkurunziza’s bid for a third term in Bujumbura. AFP PHOTO | JENNIFER HUXTA 

By CHARLES KM KAMBANDA

Burundi’s current deadlock arises from the president’s determination to run for another term, after 10 years in office.

Supporters of the president’s new bid for the top job are convinced that the Republic of Burundi 2005 Constitution does not bar the president from running again.

On the other hand, opposition leaders argue that the spirit and letter of the Arusha Agreement, read together with what they call vague presidential term limits in the Constitution, bars the president from running for another term.

Article 96 of the Burundi 2005 Constitution provides that “the president of the republic is elected by universal suffrage for a mandate of five years renewable one time.” The president has held office for 10 years now. Burundi’s opposition leaders and political activists insist that the president is ineligible for another term.

The president and his supporters contend that the president has been in office for 10 years. However, the first term he served (five years) was under “Title XV: Of the Particular provisions for the First Post-Transitional Period” the Constitution created. Therefore, the president argues, the first five years under Title XV, do not count for the purpose of Article 96.

The Arusha Agreement

The Arusha Agreement adopted five protocols. The pertinent protocol, for purposes of presidential terms limits, is democracy and good governance (Protocol 11).

Article 7 (1) (a) of the Protocol on democracy and good governance provides that: “the [subsequent] Constitution shall provide that, save for the first election of a president, the president shall be elected by direct universal suffrage.”

Article 7 (1) (c) prescribed that the National Assembly would elect the first post-transition president through Article 20 (10) procedure. Article 7 (3) prescribes that the constitution shall provide that the president is elected for a term of five years renewable only once.

The framers of Article 96 adopted Articles 7(1) (a) and 7 (3) of the Arusha Agreement without adopting Article 7(1) (c). However, Article 302 provides that “Exceptionally, the first President of the Republic of the post-transition period is elected by the [elected] National Assembly and the elected Senate meeting in Congress; with a majority of two-thirds of the members.”

The president elected for the first post-transition period may not dissolve the Parliament.

Appreciation of the root cause of the current crisis in Burundi requires addressing issues such as: whether or not the Arusha Agreement is a legal instrument in Burundi.

It’s paramount to determine whether or not a set of moral or social principles that inspired the framers of a Constitution can be used to alter the letter of the same Constitution.

Whether or not the Arusha Agreement was an ordinary agreement/contract between the parties that terminated by its terms. It is imperative to determine whether or not Article 302 is an exception to, or complements Article 96 of Burundi’s Constitution.

In their ruling, the Justices of Constitutional Court reasoned that “to understand the spirit of the Constitution, it is useful to first understand the document which mostly inspired the drafters of the 2005 Constitution.”

Burundi’s Constitutional Court Justices argued that the Arusha Agreement is a genuine, unavoidable, inspiring and indispensable document. In effect, the Constitutional Court argued that the Arusha Agreement is Burundi’s 2005 Constitution bedrock.

The Justices conclusion about the status and role of the Arusha Agreement in Burundi post-conflict law is revealing. The Arusha Agreement was meant for a specific purpose: To establish and enforce principles and rules that would help Burundians bring an end to their protracted ethnic civil war and build institutions for sustainable peace, security and development.

It appears the Justices were rightly convinced that although the Arusha agreement inspired the framers of the Constitution, like any other landmark event and/or agreement in Burundi’s history, the black and white letter of Burundi’s Constitution prevails. The Justices appear to agree that Title XV of the 2005 Burundi Constitution created a special transitional presidency which the framers of the constitution, clearly, did not intend to count for purposes of Article 96 term limit.

The Arusha agreement was a multilateral agreement, not a Treaty under the Vienna Convention on Treaties. The Arusha agreement never became, and was not meant to be, a legal instrument. There was an offer, acceptance, consideration and there were no defences for any party against the Arusha Agreement.

There were specific things each party had to perform within a specific time frame.

To this effect, Protocol V, Article 3 (1) created the Implementation Monitoring Committee to: “(a) Follow up, monitor, supervise, co-ordinate and ensure the effective implementation of all the provisions of the agreement; (b) Ensure that the implementation timetable is respected; (c) ensure the accurate interpretation of the agreement; (d) Reconcile points of view (f) give guidance to and co-ordinate the activities of all commissions and sub-commissions set up for the purpose of implementing the agreement, (g) Assist and support the transitional government in its diplomatic mobilisation of financial, material, technical and human resources required for the implementation of the Agreement.”

On August 8 and 9, 2005, the Implementation Monitoring Committee held its last meeting. The committee reported to the UN Secretary General that the Agreement had been fully implemented.

The UN Secretary General then reported to the UN Security Council that the Arusha Agreement had been implemented. Therefore, the Arusha agreement, like any other ordinary agreement/contract, terminated naturally, by its termination clause.

When an agreement/contract terminates by its own terms, the parties are discharged. An agreement that terminated cannot be revived without new negotiations which would require new offer, acceptance, consideration and absence of defences.

It is erroneous to evoke the terms of the Arusha Agreement after its natural termination. The spirit of the agreement may be morally binding for ages.

However, governments enforce written laws, not morality. It follows that while the Burundian government must enforce the law, including the Constitution, it may reasonably not be expected to enforce moral principles.

Burundi’s Constitutional Court Justices rightly observed that the Arusha agreement remains a living inspiration for Burundians because it was the cornerstone for ending the bloody protracted ethnic war.

Jurists agree that specific events, life experience or realities inspire each statute or law. However, the events, life experience that inspire a given Statute do not, by themselves, become law.

It is a settled statutory and or constitutional interpretation principle that in order to understand an ambiguous or unclear term or provision of the law, it’s imperative to understand what the framers of that statute or constitution intended.

Where the law is clear, as it is the case with Burundi’s Constitution on Presidential terms, reading the law, not interpretation, is the proper course of action.

The Arusha agreement is one of the various external and internal environments that inspired the framers of the Burundi Constitution.

The Constitution ushered in a new, independent and sustainable legal order that in its written form cannot be invalidated by a set of principles or problems the external and internal environments dictates.

The Burundi Constitution did not adopt any provision of, or in its entirety, the Arusha Agreement: Burundi’s Constitution mentions the Arusha Agreement, probably once, in its preamble: “Reaffirming our faith in the ideal of peace, of reconciliation and national unity in accordance with the Agreement of Arusha.”

A moral nature

This provision in the Constitution is instructive. The framers are categorical; the Agreement is a set of ideal of a moral nature not law. Second, it was not the framers’ intention to adopt the Arusha “ideals” by mentioning the Agreement in the Preamble. It’s a legal principle, of general application, that mentioning a document or an event in a statute or Constitution, by itself, is insufficient to prove that the document or event thereby mentioned is a component of the Statute or Constitution.

Article 19 of Burundi’s Constitution enumerates specific Treaties that are a part of the constitution. Burundi’s Constitution does not enumerate the Arusha agreement among the Treaties that are an integral part of the Constitution.

Burundi’s Constitution creates a unique period called the “first post-transitional” under Title XV of the Constitution. Title XV wording is clear; it reads: “Title XV: of the particular provisions for the first post-transitional period.”

Title XV set particular procedures for election of the president of this unique period. It took away some vital powers of the president during the post-transitional government. Title XV procedures and presidential terms are of no significance to Article 96 standards because each part of the Constitution is meant for a different presidential epoch.

Title XV Article 302 provides that “Exceptionally, the first President of the Republic of the post-transition period is elected by the [elected] National Assembly and the elected Senate meeting in Congress.

Dead law

The president elected for the first post-transition period may not dissolve the Parliament.” The core powers of the president in the section “Executive Powers” did not exist in Title XV era. By its letter and spirit, Title XV created a special category of presidency which was not intended to count for purposes of Article 96.

The wording of Title XV of Burundi’s Constitution is clearly meant to create a distinct and separate constitutional epoch called “the first post-transitional period” which is outside the scope of Article 96 presidential terms limit.

Save for the clear wording of Title XV, particularly Article 302, the framers of Burundi’s Constitution could not have intended that Article 302 to “amend” and/or invalidate Article 96 of the same constitution. In effect, Title XV provisions became obsolete as soon as the first post transitional period ended. Seeking to apply Title XV provisions, beyond it’s the intended period, amounts applying a dead law.

Burundi’s affliction is an imaginary constitutional crisis. It is odd to believe that an agreement (which terminated) can be revived without new negotiations. It is inconsistent with logic for some members of society to believe that a written law can be modified or abrogated by the “spirit” or trend that is believed to have inspired the framers of the law or Constitution.

Many countries that emerge from protracted armed conflicts sign similar agreements. The standard procedure is that the agreement is enforceable during the transitional period the parties agreed to. No such country has ever been asked to implement its peace agreement beyond the transitional period.

Burundi is confronted with deeper political and economic problems, domestically and internationally. Domestically, the ruling party is excessively strong (in terms of resources and membership) in comparison with all the opposition political parties.

In the most fair and free elections, the possibility that opposition parties will win an election is minimal. Burundi’s opposition political parties are confronted with a political monster; the ruling political party.

Outside government, there are very few chances for politicians to live decently in Burundi because of extreme poverty and mindset. Political tension in such environments is inevitable. The country’s economic base is too narrow yet Burundi’s fertility rate is all the way through the roof for a tiny country.

This opens a floodgate of all social evils which makes Burundi an active volcano that could erupt anytime for any reason; real or imaginary. Internationally, Burundi is a favourable gateway into DR Congo’s vast and valuable natural resources.

I do not believe that anybody should be president for more than 10 years. However, this conviction remains a moral issue until there is some provision of the law that prohibits holding the first office for more than 10 years.

Burundians should address the real underlying problems to this imaginary constitutional crisis.

Dr Kambanda is an attorney and counsel at law in New York, US.

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