Nkurunziza’s law changes will have far-reaching impact on the region

Monday May 21 2018

A security officer stands guard as voters queue to vote at a polling station in Bujumbura on May 17, 2018. PHOTO | AFP

A security officer stands guard as voters queue to vote at a polling station in Bujumbura on May 17, 2018. PHOTO | AFP 

By WACHIRA MAINA
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On Thursday, Burundi held a referendum on a new constitution. President Pierre Nkurunziza’s party, the CNDD-FDD, says that the changes will eliminate the last vestiges of colonialism. 

Those colonial vestiges are presidential term-limits and power sharing between Hutus and Tutsis. Media in East Africa has ignored the story, proving, as Judge Damon Keith once said, that all democracies — especially fragile ones — die behind closed doors. Burundi has done all it could to ensure that the referendum is a low key affair, at home and abroad.

Earlier this month, Mr Karenga Ramadhani, the chief executive of the National Communications Council (NCC), suspended both the BBC and the Voice of America (VOA), for six months, arguing that they violated the “laws governing the press and ethics.”

The ban, conveniently, came into force on the May 7, a mere ten days before the constitutional referendum scheduled for May 17.

BBC’s sin was to have aired an interview conducted with a Brussels-based Burundian activist which the regulator considered “inappropriate, exaggerated, non-verified [and] damaging to the reputation of the head of state”, as well as likely to lead  “to ethnic hatred, to political conflict and civil disobedience”. 

The real problem though, seems to be the growing audience that BBC and VOA’s Kirundi services have garnered in rural Burundi since 2015. 

Why is President Nkurunziza worried? He knows that the changes he has made carry two risks.

One, they will undo the delicate settlement agreed between the Tutsis and Hutus in 2000. Two, they must inevitably destabilise Burundi, a country forever teetering on the precipice. Here is why.

Under the changes President Nkurunziza will increase the president’s term in office from five to seven years and then limit the mandate to a maximum of two terms. When these types of amendments are made, they are usually not applied retrospectively. Not in Africa.

So it is obvious that President Nkurunziza will run again when his current term expires in 2020. In making these changes, President Nkurunziza has reprised a familiar script.

In 2015 he got himself a new term in the same manner that Sam Nujoma in Namibia had done in 1999 — by arguing that his first term did not count as a term because he was never directly elected. 

Thinking ahead, President Nkurunziza knew that he would not be able rehash that 2015 argument come 2020. So he has adopted the Guinea option. In 2001, President Lansana Conte extended the presidential term from five to seven years. He then ran again, over the opposition’s objections, arguing that terms already served did not count because limitations are prospective and never retrospective. 

It is easy to see that in 2020 President Nkurunziza will argue that terms served do not count. It is also obvious that the new seven year two-term limit on President Nkurunziza is plainly duplicitous.

Chad’s Idriss Deby already taught us how this game works. In 2001, Mr Deby promised to leave office when his second term came to an end in 2006. In 2005, he scrapped term limits and then contested elections in 2006, 2011 and again in 2016.

He then claimed, implausibly, that he would re-enact term limits. In short, this term-limits ploy is a game of musical chairs in which the incumbent runs with the seat, ensuring that he cannot lose.

Consociational

President Nkurunziza has also re-organised the executive. A new post of prime-minister, who will be head of government, has been created and the two vice-president positions agreed in Arusha have been collapsed into one.

The Arusha constitution was meant to be consociational: executive power was to be shared between the president and the two vice-presidents. This was supplemented by communal power sharing.

Hutu Ministers would be no more than 60 percent of government. Tutsis would be no more than 40 percent and women were guaranteed 30 per cent of cabinet positions. The new amendments have retained this provision: That and the stipulation that the president and vice-president come from different ethnic groups are the only power sharing elements that President Nkurunziza has retained.

However, even this version of ethnic quotas is not quite what it was before. The new article 128 re-enacts the old article 129 but adds the phrase that the government ‘includes’ the prime-minister and the ministers. 

At first glance, this ‘inclusive’ definition gives the impression, deceptively, that the President will be above the political fray and that the business of government lies with the prime minister. Nothing is farther from the true picture.

Under the old article 92, it is clear that the Arusha Accord envisioned a collegial executive. That article vested executive power in the President, two Vice-Presidents and members of the government, collectively.

The new article 98 erases that collegial executive and makes the President “the head of the power executive”, making it unambiguously clear that the Vice-President is merely an assistant. The inferiority of the premier is even more transparent.

Under the new changes, policies will be “defined” by the president and “carried out” by the government. The prime minister on this reading is a glorified ‘chef de cabinet’ whose only job is to co-ordinate actions already decided by President Nkurunziza.

Inter-ethnic relations

The changes do not bode well for inter-ethnic relations. The Tutsis will be particularly alarmed by article 289, which subverts the power sharing logic of the 2005 constitution.

Article 289 is a sunset clause. It sets a five-year deadline for the Senate to re-consider the system of ethnic quotas that Burundi has so far used to fill positions in the Executive, the Legislature and the Judiciary.

In theory, the Senate has discretion to extend the system of quotas but it is unclear when the time on the five-year deadline begins to run. The new provision merely says five years “after the establishment of the institutions” under the constitution. That raises the question whether those institutions are established on the day the constitution is enacted or when they become operational.

Of particular concern will be the abolition of the delicate ethnic balance within the National Intelligence Service. Under the new changes, the Service need not follow the Tutsi/Hutu balancing that the army and the police are required to.

Among the ratchets created by the Arusha Accords to ensure inter-ethnic consensus was the stipulation that laws must have the support of two-thirds majority in parliament. That has been lowered to an absolute majority, 50 per cent plus one.

It is easy to see why this too will worry the Tutsis. If the Hutus are 60 per cent of the legislature under the quota, they automatically become a permanent majority. It is no argument that some Hutus have sometimes voted with Tutsis. In deeply divided societies, voting is usually an ethnic census: Election follows identity.

But President Nkurunziza has made matters worse. Under the new changes, any Bill passed by parliament lapses and is null and void if the president does not assent to it in 30 days. This is an extraordinary act of executive overreach.

Typically, a president has a right of referral, not a unilateral veto. Which means the president may refuse to assent to a Bill passed by parliament but he must also give reasons for withholding the assent. President Nkurunziza wants a negative veto, that is an ability to frustrate legislation by inaction.

Given President Nkurunziza’s policies since 2015 these changes will make things worse. Hutu/Tutsi divisions are now sharper, defeating the intention of Arusha. With the 50 per cent plus one rule as the legislative threshold, Hutus don’t need cross-ethnic accommodation with Tutsis.

Extradition

President Nkurunziza seems to have forgotten that — as happened under the Tutsi dictatorship in the 1960s and the 1970s — whenever one ethnic group has a stranglehold of this nature it nurtures extremism not only in Burundi but also in Rwanda.

That is one part of the new changes. The second part is President Nkurunziza’s attempt to immunise himself from criminal charges by the International Criminal Court (ICC) through changes to article 50 of the constitution.

Before it was changed, that article provided that a Burundian could be extradited “within the limits provided by law” if “prosecuted by an international criminal court for the crime of genocide, war crime or other crimes against humanity.” 

The new article simply states that “no Burundian can be extradited”. This has no exceptions, which means that Burundians are immune from all extraditable crimes, including those over which the country has signed extradition treaties with other countries. 

There is a backstory to this extraordinary move.  In 2016, the ICC initiated an investigation into the situation in Burundi following claims by the UN that crimes against humanity, including murder and sexual violence, had been committed in Burundi.

Witnesses told investigators that these crimes had been committed by the security forces, members of the intelligence service and the notorious Imbonerakure (those who see from far), the violent thugs of the CNDD-FDD.

In October 2017, President Nkurunziza, piqued by this investigation, decided to pull Burundi out of the Rome Statute. Burundi became the first and so far only country to do so successfully. 

In February 2017, the other would-be reprobates, the Gambia and South Africa, reconsidered. The Gambia’s new President Adama Barrow reversed his predecessor Yaya Jammeh’s decision to withdraw whilst in South Africa, Jacob Zuma’s effort was stymied by the Constitutional Court.

President Nkurunziza knows that withdrawing his country from the ICC did not affect the ICC examination of the situation in Burundi, which began when the country was still a state party to the Rome Statute.

This amendment is his next best strategy: Unable to stymie the ICC, he has tied his successors’ hands with constitutional edicts. By immunising himself from the ICC under the constitution, President Nkurunziza forces future governments to amend the constitution before they can hand him or his cronies over to international justice.

Unfortunately, even this is not enough. No country can use its law to immunise its citizens or anyone against these crimes. These are crimes for which a perpetrator can be put on trial by any state that gets hold of them.

Neighbours

Beyond Burundi, there are two problems with what President Nkurunziza has done. He is myopic on the lessons of Burundi history and indifferent to the impact of his actions on neighbours. 

The Arusha Peace Accords were meant to end the two bloodiest decades of Burundi’s history, going back to 1972. In 1972, the Hutu attempted a revolution similar to the one that overthrew the Tutsi Kingdom in Rwanda in 1959. The then ruling Tutsi elite unleashed a genocidal rampage that left 200,000 dead, essentially the whole Hutu elite.

The Hutu elite that survived found sanctuary in Rwanda, coalesced into Palipehutu under Remi Gahutu and became virulently anti-Tutsi. They cast the Tutsi as moral perverts: depraved, deceitful, wicked and imperialistic fantasists seeking a Hima/Tutsi empire in the Great Lakes region.

This venomous narrative framed, in part, the political rhetoric of pre-genocide Rwanda. That, in turn, became the context in which Burundi elected Melchior Ndadaye, its first Hutu president, in late 1993.

The Tutsi elite now out of power, casting a nervous eye on the growing Hutu extremism in Rwanda, assassinated Ndadaye on the October 21, 1993, barely 100 days after he took office. A period of violence and instability followed.

Then in February 1994, Cyprien Ntaryamira, Ndadaye’s Minister for Agriculture, also Hutu but considered moderate, took over as president. On April the 6, 1994, Ntaryamira hitched a ride on Juvenal Habyarimana’s plane and died alongside him when the plane was shot down at Kanombe on the outskirts of Kigali.

That event unleashed the genocide in Rwanda and converted the conflict in Burundi into a seven-year civil war. But whilst the genocide lasted 90 days, the war in Burundi dragged on till the early 2000s, claiming more than 300,000 lives in the process. 

The Arusha Accords were meant to provide closure to this hurt; to build inter-communal trust where suspicion and hatred had festered. By these changes, President Nkurunziza has returned the country to the very politics that the Hutus in Burundi had castigated Tutsis for.

By unthreading Arusha’s delicate settlement, President Nkurunziza has created both a short-term and a long-term problem. The short-term problem is humanitarian. Since 2015, 230,000 Burundians have fled to Tanzania. Another 170, 000 are in Rwanda, with 64,000 of these in Mahama Camp, not far from the border with Tanzania.

The long-run problem is more deadly. By constraining political space, President Nkurunziza has made it inevitable that the opposition must turn violent.

There is an armed rebellion coming. That has two dangers: One, it has the potential to suck in Rwanda. And President Paul Kagame never starts things he cannot finish. Two, the Tutsis are a diasporic community: They and their Hima cousins are spread across Rwanda, Burundi, Democratic Republic of Congo, Tanzania and Uganda.

When the Tutsi have a problem in any one of these five countries that problem eventually crosses borders and becomes a regional headache.

The East African Community ought to have paid more attention to Burundi. It did not. And that is a tragedy.

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