Burundi current political crisis and social unrest arises from the president’s determination to run for another term, after 10 years in office. According to CNDD-FDD the party on power, 2015 Pierre Nkuruziza candidature is full respecting the Constitution because is the second one that may be obtained by universal suffrage. The first madate obtained on 2005 was under extraordinary circumstances that cannot be included in a normal presidential mandate. Burundi’s opposition leaders and Civil Society activists insist that the president is ineligible for another term because of the 2005 mandate must be consider the first Nkurunziza mandate without any pretext of extraordinary situation.
Pierre Nkurunziza, warlord and leader of Hutupower armed group National Council for the Defense of Democracy-Forces for the Defense of Democracy (CNDD-FDD), after the end of the civil war he was appointed in late 2003 Minister for Good Governance in the transitional government of President Domitien Ndayizeye. Following a series of CNDD-FDD victories in administrative elections held during June and July 2005, Nkurunziza was nominated as the party’s presidential candidate. He was elected President unopposed by members of Parliament, acting as an electorate college, on 19 August 2005 and took office on 26 August 2005. He was re-elected in 2010 with more than 91% of the votes amidst an opposition boycott and sworn in for his second term on 26 August 2010. He was practically the only candidate because the opposition parties refuse to participate to election considered heavy contaminated by frauds and irregularities.
According to Article 96 of 2005 Constitution “the president of the republic is elected by universal suffrage for a mandate of five years renewable one time.” In this case it’s clear that Nkurunziza cannot run again this year. 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.
How is possible that in the same Constitution there are two contradictory articles about Presidential terms?
This unique juridical chaos has been deliberately create by 2000 Arusha Peace Agreements promoted essentially by Saint’Egidio Community, South African President Thabo Mbeki and United States President Bill Clinton. According to the historical situation in Great Lakes Region, U.S. and France needed to end a secondary conflict (the Burundian ones) in order to concentrate on political compromise that can permit an economic power sharing in DRC after two Pan African wars whiteout winner and losers. On 2000 tutsi government lead by Pierre Buyoya signed the treaty, as well as 13 of the 19 warring Hutu and Tutsi factions. The real pace has been implemented only three year later on 2003 with a general cease fire and the creation of the transitional government of President Domitien Ndayizeye.
The Arusha Agreement adopted several protocols. The pertinent protocol, for purposes of presidential terms limits, is democracy and good governance (Protocol 11) that prescribes that the first mandate shall be considered as extraordinary and detached by Burundi Constitution. In order to reinforce the first presidential mandate extraordinary nature was created article XV on 2005 Constitution. According to several politic analysts Protocol 11 and Article XV have been elaborated and proposed by expert of Sant’Egidio Community.
This legal deception, at the beginning not really understood, has permit on late May Burundian Constitutional Court of Justice to argue that Nkurunziza first mandate was a special transitional presidency under Arusha agreement Protocol 11 and Burundian Constitution Article XV. For this reason the first mandate is only one obtained on 2011. The Constitutional Court argued that the Arusha Agreement is Burundi’s 2005 Constitution bedrock.
African and International jurists disagree with this interpretation made by a Juridical system totally under Nkurunziza control. 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. 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. Arusha agreement terminated on 09th August 2005. 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 discussions. As final consideration a temporally agreement cannot influence the Constitution that is the First Law of any Country.
Burundi’s Constitutional Court of Justice argues that Arusha Agreement is still alive, genuine and inspiration of the 2005 Constitution. In reality Burundi’s Constitution enumerate several International Treaties that a part of the Constitution except Arusha one. Concerning Article XV the Constitution clarify that is provisory and valid only for first post-conflict period. In no case can invalidate of replace Article 19 on presidential terms limits.
This is the legal confusion created by Sant’Egidio Community and other minors actors on 2000 that permit to Nkurunziza to persist on third mandate. U.N. is not except of responsibilities. U.N declares Arusha Agreement still valid but not full respected. This offer to Nkurunziza other arguments about Arusha Agreement superiority over Constitution. Declare Arusha Agreement still valid is a false declaration. On 09th August 2005 U.N. Implementation Monitoring Committee reported to UN Segretary General that the Agreement was been fully implemented. Therefore, the Arusha Agreement, like other ordinary contract terminated naturally included Protocol 11 and Article XV.
According Attorney and law counsel in New York Dr Charles KM Kambanda, the artificial constitutional confusion and not clear legal framework are simple instrument for Nkurunziza not the real core of Burundi’s present crisis.
“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.” Describe Dr. Kambabda