Mfumukeko and EAC Summit have failed the test of impartiality on Burundi crisis

Friday April 28 2017

Early this month, the Secretary General of the East African Community, EAC, Burundi national Libérat Mfumukeko, was reported to have dismissed the report of Jamal Benomar, the UN Secretary General, to the UN Security Council on the situation in Burundi.

His statement effectively draws the EAC into Burundi’s quarrels with the UN.

Mr Mfumukeko repeats denials that are now Burundi’s stock answer to all criticism and external scrutiny of President Nkurunziza’s failings since his third term bid spawned a crisis two years ago. That Mr Mfumukeko can use an EAC institution to push Nkurunziza’s agenda stains the reputation of the Secretariat and pinpoints just how gutless the EAC has become.

Mr Mfumukeko is a former adviser to President Pierre Nkurunziza. He is also a long-term regime insider, having also served as Director General of Burundi’s power and water utility, Régie de Production et Distribution d’Eau et d’Electricité, REGIDESO.

What are East Africans to make of Mr Mfumukeko’s statement?

Is it the official position of the EAC? Why is the head of the EAC Secretariat speaking for the Burundi government?


The EAC treaty explicitly bars the Secretariat – which includes its CEO – from seeking or receiving instructions from any member state. Moreover, the Secretary General must, under article 72, “refrain from any actions”, such as Mr Mfumukeko’s statement, that reflect adversely on the Community.

As it is, the EAC is actively mediating the Burundi conflict.

The EAC is also partnering with the AU and the UN in a joint technical working group on that conflict. Why, then, is the CEO of its Secretariat publicly dissing the report of a partner? How can the EAC, as peacemaker, hope to persuade opposition groups – whom the Burundi government has studiously refused to meet – that it is impartial and committed to a just resolution to the Burundi debacle when it expresses itself in such a partisan manner?


The East African Community Secretary-General Liberat Mfumukeko. PHOTO | FILE

The immediate danger of Mr Mfumukeko’s contempt for the Secretary General’s report is that it compromises the EAC’s independent assessment of the Secretary General’s findings — which are detailed and troubling — and makes the EAC Secretariat sound like a spokesman for Mr Nkurunziza’s government.

Mr Mfumukeko’s criticism was not set out but it is hard to see what his beef is.

The Secretary General’s report has dates, figures and places all admiringly set out in succinct and compelling detail. First off, the report notes that the political crisis spawned by Mr Nkurunziza’s decision to seek a third term two years ago has only deepened since.

The ruling party, named without irony, the Council for the Defence of Democracy – Forces for the Restoration of Democracy, CNDD-FDD, has become more repressive.

Its raucous and nasty militia, the politically myopic Imbonerakure (those that see far) has grown even nastier, buoyed by official support and the climate of impunity fostered by CNDD-FDD. Described by IRIN as ‘armed, murderous, militarized, partisan, powerful, unaccountable and uneducated’ the militia has been holding highly charged protests in which it threatens mass rapes and invites youths to impregnate women in order to swell its ranks.
The UN’s central finding is that little is happening to normalise the situation on the ground; the government claims that all is well notwithstanding. There are two intra-Burundian dialogues underway: an internal dialogue led by National Commission for the Inter-Burundian Dialogue (CNDI) and an external dialogue under the EAC with President Yoweri Museveni of Uganda as mediator and former president Benjamin Mkapa of Tanzania as facilitator.
As the report notes, the government-led intra-Burundian dialogue is neither seen as a real dialogue nor as inclusive enough by some groups; some of its recommendations inflame rather than douse passions. Last year, it called for abolition of presidential term-limits altogether and proposed a raft of additional amendments that would undo many of the commitments in the 2000 Arusha Peace and Reconciliation Agreement.
The assessment is that this internal dialogue is narrow and pro-establishment. Mr Nkuruzinza refuses to engage the leaders of “Stop the third term” movement, many now in exile. The EAC has, to its credit – in an otherwise discreditable policy- rejected President Nkurunziza’s proposal to “return the EAC dialogue” to Burundi and merge it with the CNDI process, recognising, perhaps, that such a move would hand Mr Nkurunziza all the cards.
The external dialogue has fared no better, sputtering along in fits and starts and bedeviled by East Africa’s self-serving Summit politics. Last year, the EAC Summit promised to engage all parties to the conflict in a “serious” and “inclusive” way and “without preconditions”. But the tone of the Community’s talk with Nkurunziza remains indulgent and timorous.

Graceful exit
Contrast this with Ecowas’ more muscular policy towards Yahya Jammeh of Gambia who lost an election, conceded defeat and then withdrew the concession. Ecowas advised him to stay true to his earlier concession and exit gracefully. He demurred.

The regional body then mobilised its troops. Jammeh, knowing he could be bundled off to the ICC like Ivorian President Laurent Gbagbo before him a few years back, quickly negotiated an exit, making way for Adama Barrow, the president-elect, then holed up in Dakar.

East African leaders, in contrast, have been reticent and timid about challenging Nkurunziza. In the words of the facilitator Benjamin Mkapa, he is not interested in the “legitimacy” of the Nkurunziza administration. He advises the opposition and civil society groups to focus, instead on preparing for the 2020 elections, not on the 2015 mess.

This has enraged the National Council for Respect for the Arusha Agreement and the Rule of Law (CNARED), the umbrella group under which these groups are organised. They have accused Mkapa of pro-government bias, charging that he has effectively “denied the cause of the conflict in Burundi.”

They dismissed him in a December 2016 letter, saying that they no longer recognised him as facilitator.

According to the report, the CNARED has somewhat back-tracked from that hard stance. In February, Mkapa met many of their representatives in what was meant to be a round-table of all in Arusha.

The Burundi government did not show up, even though the CNDD-FDD came. As the meeting went on, the Burundi authorities poisoned the atmosphere further by formally requesting Tanzania to arrest and hand over some of the participants. Even the phlegmatic Mkapa saw the danger, recommending in his final statement that the EAC summit meet urgently to discuss “impediments to the process.”

Blocking dialogue, the UN Report notes, has moved in lockstep with internal repression. Many critical voices have been snuffed out or driven into exile. In October last year, the Organisation of Burundian Journalists was suspended. Other NGOs have been shut down, some like the Ligue Iteka – a human rights NGO – permanently. A number of human rights activists and NGO leaders have fled the country.

Under a new law that came into force in January, NGOs funded from or based abroad must deposit one third of their budget at the Central Bank and pay all their staff – including international employees – in Burundian francs.

This ostensibly fiscal measure seems calculated to disable or discourage operations of independent bodies, the better to shield government from criticism and scrutiny.

The report notes a decline in “overt violence” but reports a sinister pattern of “human rights violations and abuses”, particularly “gender-based violence, arbitrary arrests and detentions, torture and ill-treatment.”

The government says the country has returned to normal but numbers tell a different and more compelling story. As of February this year, 387,000 Burundians had fled the country, projected by the UNHCR to top half a million by end of this year. Between October last year and this January, 210 enforced disappearances were reported nearly three times the 77 reported in the previous reporting period. In the same period, 30 people have been killed, 22 corpses found, believed murdered.

Accentuating the lawlessness are activities of the security forces and the semi-official imbonerakure. The Report notes that the security forces are conducting “search and cordon” forays in certain Bujumbura neighbourhoods – ‘especially Musaga and Nyakabira’ – regions that the regime blames for the protests against Nkurunziza’s third term. Violations by state agents and the Imbonerakure are never investigated, nurturing continued lawlessness.
As governance gets more attenuated, Mr Nkurunziza blames what he calls the same ‘small group of people’ responsible for Burundi’s recurrent conflicts since independence. This is dangerous ethnic baiting. The obvious target is the minority Tutsi.

The Tutsi make up 15 percent of the population but for 30 years they held political and military sway in Burundi – from independence from Belgium in 1962 to the early 1993 – when the country slipped into a deadly civil war after assassination of its first democratically elected and also first Hutu president, Melchior Ndadaye.

Ethnic demonising is creeping back. A recent questionnaire circulated by the ministry in charge of the civil service asked employees to state their ethnicity.

The government argued that the questions were benign, intended to gather data for constitutionally required quotas.

Many groups, including the UN Committee on the Elimination of Racial Discrimination, CERD, suspect more sinister motives, assessing the questionnaire in the context of other developments including, for instance, a recent spike in hate speech and incitement to ethnic violence by officials.

In tandem with these developments, the government has stiffened its resistance to outside scrutiny.

Mr Nkurunziza won’t co-operate with the UN. Last year, Burundi became the first member of the EAC to formally notify the UN Secretary General that it was withdrawing from the Rome Statute.

That same month, the government suspended all cooperation with the Office of the High Commissioner for Human Rights, OHCHR, miffed that the body had helped write a critical report on Burundi.

In yet another unprecedented move, the minister for justice led a Burundi delegation in a unilateral walk-out from a session of the Committee Against Torture, the treaty body under the Convention Against Torture, which had specifically convened to discuss summary executions, arbitrary detentions and torture in Burundi. Burundi claimed, over UN denials, that it had not been given the report in advance.

As for the earlier report on the situation in Burundi, the government rejected it as “political”, “unverified” and “dangerously biased.” When the Human Rights’ Council adopted a resolution to establish a commission of inquiry into human rights violations, the government said that the resolution was “inapplicable to Burundi.”
When it does not out rightly reject international intervention, the government prevaricates and pussyfoots. Last year, it promised the Secretary General’s Special Adviser that it would welcome 50 unarmed UN police officers into the country. As soon as the adviser left Burundi, the government told the UN the officers were no longer needed. It treats the AU no differently.

Obstructed efforts
So far, Burundi has used protracted negotiations to stall on a memorandum of understanding with the AU which is meant to set the terms for the AU to deploy human rights observers and military experts. The UN – recalling Rwanda’s heedless spiral into genocide in 1994 – wants to develop a contingency plan to deploy a coercive peace enforcement force if genocide should look likely. However, it cannot deploy such a force without Burundi’s consent.

In short, Nkurunziza has obstructed efforts to resolve the current conflict and made it impossible for regional and international bodies to forestall a greater tragedy in the future.
All this is hurting the economy and feeding a humanitarian crisis. Unemployment – especially of youth – has shot up, a naked flame to a deadly tinderbox.

Security spending

Meanwhile, security spending is up.

The government is diverting money from health, education and agriculture- all sectors that have seen massive drops in spending- and investing in the armed forces, meaning that the apparatus of repression is stronger than before.

All the key vulnerability indicators are headed south. The number of people in need of humanitarian support has risen from 1.1 to 3 million – 26 per cent of the population.

The population that is food insecure has quadrupled - from 730,000 to 3 million and the monthly border crossing into neighbouring countries has doubled in the months to the end of 2016.

In all, the UN Secretary General’s Report makes depressing reading, reminding East Africa that the situation in Burundi is dire. It is this that makes Mr Mfumukeko’s statement worrying.

The EAC Treaty commits the Community, in article 6, to “good governance”; “the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality” and “promotion and protection of human and people’s rights.”

It is Mr Mfumukeko’s duty to see to it that every state party discharges its duty under article 8 to “plan and direct their policies and resources” towards enforcing the Treaty and meeting the goals of the Community.

By defending the one state that has done the most to undermine all the EAC values, Burundi, Mr Mfumukeko has failed.

And since the Summit has allowed Burundi to enjoy all the rights of being a member of the EAC even with such an appalling record, the Summit too, like its Secretary General, has failed. Why, by the way, was Burundi even allowed to nominate the Secretary General in the first place?

Wachira Maina is a constitutional lawyer based in Nairobi