The AU and the constitutional review process in Burundi

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Burundi is set to hold a referendum on a constitutional amendment in May 2018. This could enable President Pierre Nkurunziza to stay in power beyond 2020 and weaken the representation of minority groups. The lack of broader consultation on the overall amendment process further threatens the Arusha peace deal that ended the 1993–2005 Burundian civil war.

The constitutional amendment process in Burundi is Nkurunziza’s second attempt to change the constitution, after he initially failed in March 2014. He went ahead to contest and win the 2015 elections owing to a controversial court ruling – a move that secured his third term in office and plunged the country into political turmoil.

Former Tanzanian president Benjamin Mkapa, the East African Community (EAC) facilitator of the stalled inter-Burundian dialogue, has warned against the constitutional review, given its potential to worsen instability in the country.

The proposed changes to Burundi’s constitution provides for the presidential term to be limited to two terms, but increased from five to seven years. This could technically allow the incumbent Nkurunziza (54) to run for re-election in 2020 – and potentially again in 2027 – under the new constitution, despite his having served three terms under the current one.

Impact on the representation of minority groups

The proposed constitutional changes are also widely criticised for replacing the two-thirds majority required to pass legislation with a simple majority – a provision that was part of the ethnic and political power-sharing component of the Arusha peace agreement. Although the rule on 60% Hutu and 40% Tutsi representation in the National Assembly remains, the simple majority erodes the built-in mechanism allowing Tutsis’ input on critical matters.

The draft constitution also replaces the provision for two vice presidents – one from the opposition and the other from the ruling party – with one vice-president and one prime minister.

The vice-president, who has limited powers, will be selected from a political party and ethnic group that differs from those of the president, but the influential prime minister will be appointed by the president from the ruling party.

The creation of the prime ministerial position is said to appease some members of the National Council for the Defence of Democracy–Forces for the Defence of Democracy (CNDD–FDD) who want the presidential position themselves but are hamstrung owing to Nkurunziza’s grip on power.

The consultative process

The African Union (AU), in two of its summit decisions in July 2017 and January 2018, called for broader consensus among all stakeholders on the ongoing constitutional reforms in Burundi. This has not happened.

Since May 2017, when Nkurunziza appointed a 15-member committee to draft the proposed changes to the constitution, the process has been shrouded in secrecy.

Critics of the constitutional review process have reportedly been harassed and arrested by the government.

In all this, the government has avoided engaging Parliament, the legislative branch of government. This has been an attempt to avoid criticism from both opposition members and members of the CNDD-FDD who oppose the constitutional review. Moreover, the ruling CNDD-FDD does not have the required majority in the National Assembly to unilaterally approve the constitutional amendment.

Impact of the AU’s unclear position on constitutional reviews

The AU’s earlier half-hearted response to the Burundi crisis and its failure to speak up about the current process are in line with its stance in similar situations around the continent. Under the AU’s watch, countries such as Uganda, Rwanda, the Republic of Congo, Gabon, Chad and Djibouti have altered their constitutions based on an individual’s quest to stay in office.

The AU does have tools to encourage democratic changes of government, such as the African Charter on Democracy, Elections and Governance (ACDEG). Article 23.5 of the charter prohibits ‘any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government’.

While the AU has called for adherence to the Arusha peace deal and emphasised the need for broader consensus, the organisation has been reticent about speaking out about the implications of the review process on the ACDEG. Burundi has signed the ACDEG but not ratified it, hence it is not legally bound by the charter. Its signature does, however, require Burundi to refrain from acts that undermine the charter’s purpose and objective. Burundi is also party to several AU declarations as well as the protocol establishing the PSC, which calls for sanctions in cases of unconstitutional changes of government.

The ACDEG mandates the AU Commission to ‘evaluate compliance by States Parties’ on matters relating to democracy, elections and governance in accord with article 44.2, but the commission has not engaged on this and has generally been non-committal on the constitutional review processes on the continent.

In many instances these constitutional revisions are equal to the power grabs by military regimes through coups d’état. While coups are unacceptable to the AU, there is as yet no precedent when it comes to regimes that stay on thanks to constitutional changes.

Hence, the Burundian government embarked on the contentious constitutional review knowing that there would be no backlash from the AU.

The AU’s contradictory approach

The AU has also made contradictory statements that undermine attempts to get Burundian authorities to pursue democratic values. One of these contradictions is seen in the AU decision at the recently concluded 30th summit in January 2018, when it condemned the International Criminal Court’s (ICC) decision to open an investigation on human rights violations in Burundi.

The condemnation is in line with the AU’s disagreement with the ICC, especially on the issue of prosecuting sitting leaders in Africa. The AU decision notes that the ICC investigation could destabilise the country, violate its sovereignty and impede the peace process led by the EAC.

The condemnation, however, contradicts the fact that the AU has also been making unsuccessful attempts at getting the government to sign a memorandum of understanding (MoU) on human rights and military observers to investigate the human rights abuses in the country.

Since 13 June 2015, when the AU observer mission was created, the Burundian government has refused to sign an MoU to allow the observers to operate freely. Burundi has also denied access to the observers sent by the UN Human Rights Council. Hence, the AU’s condemnation of the ICC investigation of human rights abuses contradicts its own stated intent to investigate human rights violations in Burundi and the need to ramp up international pressure on the country.

The pen-holder situation in the AU

Burundi is the acting chair of the AU’s open-ended ministerial committee on the ICC – a committee established to follow up on the AU’s concerns about the court. Over the years, the AU has relied on the pen-holder on key issues to set the agenda and tone of the AU’s decisions.

Using its leverage as the committee chair, Burundi pushed for the AU’s condemnation of the ICC investigation while other AU member states merely endorsed the decision for the sake of African solidarity.

Since January 2016, when the AU Assembly rejected the PSC decision of 17 December 2015 to send a mission to Burundi, the AU’s overall capacity to address the crisis has been limited.

The impact of the reversed decision has been far-reaching in terms of the PSC’s response to crises. Since that decision, the PSC has focused more on discussing broader thematic issues while holding fewer meetings on country-specific situations, as indicated by the PSC Report’s review of PSC meetings and decisions.

The end of Burundi’s PSC tenure an opportunity?

Burundi’s two-year tenure on the PSC ends in March 2018. It has been elected four times to the PSC – in 2008, 2010, 2014 and 2016. During its PSC membership in 2016 and 2017, Burundi was able to weaken discussions on its own instability. Indeed, the PSC’s recent meeting on the issue (on 27 October 2017) came a year after its previous meeting on Burundi (on 6 October 2016). The recent meeting produced a communiqué that was devoid of any decisions, indicating only those who briefed the PSC without any mention of important steps the AU needed to take regarding the crisis. This was not surprising, since Burundi chaired the PSC in October 2017 and the ‘pen-holder’ situation thus prevailed.

With Burundi out of the PSC, the AU has a unique opportunity to meet its obligation of defending human rights in the country. This should include a concerted effort to implement the decision to impose targeted sanctions ‘against all the Burundian stakeholders whose actions and statements contribute to the perpetuation of violence and impede the search for a solution’, as agreed during the PSC meeting on 17 October 2015.

The PSC should also make a crucial statement on the ongoing constitutional review vis-à-vis its compliance with the ACDEG.