On Burundi: Beyond coups, nation building, legitimacy and moving on

By Robert Kirunda

Many have opined that the Constitutional Court in Burundi was wrong in the way it dealt with the question of whether President Nkurunziza was eligible to contest for the presidency for one more term.

This decision is only one of many recent events that have brought Burundi to the centre of the present global discussion. These matters must concern all of us. This is not a Burundian problem only. It is, largely, an African problem.

Africa, more than needing to move on from leaders that long for and hold onto power at the greater cost of the souls and lives of their people, must urgently and desperately find a way to move on from coups and gun based regimes.

There is simply no reason to trust any African leader who takes power by the gun to vacate voluntarily. Sadly, this is one of the least favourite parts of the African story.

Perhaps the greatest fear on the Burundi crisis is that the nation will suffer at least 10 years of instability. This General that people are now very excited about will get (or possibly already is) drunk on power.

He will suggest another constitutional review process, which will take years. Then he will suggest elections and want to rule (not govern) for two "terms." Then he too will want a third term, then he will be overthrown, and the cycle will start over.

In the meantime, the army is divided on who to follow. Some will resist him and try to convince us that the coup did not succeed. I have not ruled out the possibility of civil war. Then there will be another Arusha (or out of deference to seniority - a Kampala)

Accord. This will be the basis of more debate, the constitutional review process mentioned above. Then scholars will write nice and articulate papers taking whichever side we may. In the end, this could drag for years.

Meanwhile, the economy suffers. Lives will be lost. The neighbours and the UN will continue to deal with a refugee crisis. Uganda will send in troops and lose soldiers. And one can only hope that as all this unfolds, Rwanda will not go up in flames on similar grounds.

Men who take power by the gun have the same reason: to save the country from the last gun-wielding guy with his rag tag army. They will also tell you that they will give their lives for the peace they bring.

Then, after they have stayed a while and built up their army to sophistication and unwavering loyalty, they will do the same thing. And the country will be right where it started. The problem then must not be the men but their guns.

Africa must not trust the gun anymore. It must be Africa's problem. The gun will not bring lasting peace and national transformation. It will only cause distant tensions that a generation must face at some point.

The problem is that when that time comes, the generation that has to live with the consequences will not even have the historical perspective to appreciate why the gun shouldn't be the solution. You don't believe this view? Take a look at the age demographics of Burundi.

The pertinent question on the Burundi situation then is: what happens next? The long and short of it is that I expect (or shall we say hope that) the coup in Burundi will fail.

This is not because I believe in strong men holding onto power. Perish the thought. But because of the facts. And these are the facts: Burundi was in turmoil until the signing of the Arusha Peace Acord of 2005. Then the nation wrote a constitution. Then they remained peaceful for 10 years. They started on the long, laborious and painful process of institutional building, attracting investment and convincing the world that it was now safe to visit the country. In simple terms: moving on. Until this April.

But the facts are slightly longer. The matters precipitating the present violence were taken to a court of law. The court of this nation issued a judgment. But a General, who by his profession is more inclined to receiving and obeying orders - or by his rank, issuing and expecting that his orders will be obeyed unquestioningly, matched into a private radio station and announced that he would have it no more and that he was now in charge. People took to the streets and the sound of gunfire still fills the waves. These are the facts, at least in commonly known part.

I do not support the coup and I am glad that at the time of writing, media reports indicate that the coup has failed. Firstly, I actually believe that looking at the wording of both the Arusha Acord and the Constitution, the court was right in their final decision.

They may have woven the wrong wording, but my final reading is that Nkurunziza (whatever his present capacity) was legally entitled to stand for President one more time (and the social and moral considerations may definitely be different). Nkurunziza can only be said to have been seeking a third term, if he were to attempt to repeal Article 96. But this is something that lawyers and scholars will debate to the end of civilization.

Whatever the motivations, whatever our leanings are on that judgment, I propose that we owed it to the people of Burundi to hold them to respecting the same institutions that they have slowly laboured to build.

It is my view and it must become universally wrong for any man out there to simply plunge a nation into chaos by his unilateral decision that he does not agree with a court of law. The courts lose their hard earned legitimacy when this happens. How are we to go to these very courts and profess our respect for them? But yet without the law and the courts we are worse than barbarians.

So, I do not think that disagreeing with the court gives a soldier the right to overthrow a government. It only takes us back to the vicious cycle. What Africa should have learned by now is that no where on the continent has gun based leadership been eternally sustainable. Certainly not Nigeria, Egypt, Libya, Burkina Faso, Sierra Leone or Chad.

Of the countries on the list above, let us take Burkina Faso for instance: the solution, when the guns went silent, the dust settled and before the rivers of blood dried, was a NEGOTIATED one. This is the way it should be done. I know that it will be said that it is the Arusha Acord that brought us to this point. And I agree. But it must be remembered that it was that Acord that silenced the guns. Men are by nature imperfect. And many break their word all the time. But that is why we labour to build systems.

I do not see a General whose actions are condemned by leaders in the neighbourhood have the legitimacy to steer that country to a lasting peace. The odds are against him. And "the people" who seem to be the justification and consolation or basis for his unconstitutional actions? They are the ultimate losers. Legitimacy ought to be considered more broadly than at the "will of the people."

Bottom line: Africa is a continent of perfect imperfections. We must work towards getting to imperfect perfections. The west has imperfect perfections like democracy. It is the worst system of government and we all know this. But we live with it until we devise a better system. In my very limited understanding of democracy, I argue that coups should be left in the past where they belong. I struggle to harmonise coups with the notions of democracy and the rule of law.

Legal minds and jurists must help nations move on from Kelsenianism and perfect the writing of unambiguous and clearer constitutions and peace accords and then strengthen and legitimise the institutions through which to hold men and their ambitions in check.

Nkurunziza and his ex spy chief (always cantankerous fellows these spy chiefs!) must take the next flight to Arusha. And this time, no one goes to a radio station.

The writer teaches law at Makerere University College of Law and practices with the firm of Kirunda & Wasige Advocates. Above all, he is a concerned African citizen