Article 96: The provision that could break Burundi

By Dr. Busingye Kabumba

On 24th April 2015, the Conseil National Pour la Défense de la Démocratie–Forces pour la Défense de la Démocratie (CNDD–FDD), the ruling party in Burundi, endorsed His Excellency Pierre Nkurunziza as its candidate to contest the Presidential elections, slated for 26th June 2015.

On 25th April 2015, a number of Burundians took to the streets of Bujumbura to protest this decision. Since then, at least 18 people are reported to have been killed in the protests, with the wounded standing at 216. Another 40,000 people are reported to have fled the country for fear of their lives. There seems to be no immediate end in sight to this unrest, with protests continuing despite a government order to end them.

At the root of this crisis lies the question as to the proper interpretation of Article 96 of the Burundi Constitution, which provides: The President of the Republic is elected by universal direct suffrage for a mandate of five years renewable one time. According to the Opposition, President Nkurunziza is not eligible to stand as a candidate in the 2015 elections, having served two terms as President, since his first election in 2005. The CNDD-FDD, on the other hand, argues that the first term should not be taken into account for purposes of Article 96 since that election was by the National Assembly and therefore not by ‘universal adult suffrage’. For its part, in a decision handed down on 5th May 2015, the Constitutional Court of Burundi has favoured the latter view of Article 96. However, the Court’s decision has had little effect in terms of resolving the crisis, with the Burundian Opposition dismissing it as politically motivated. Matters have not been helped by the fact that the Vice President of the Court, Sylvere Nimpagaritse, fled the country just hours before the decision was issued. According to Mr Nimpagaritse, at judges’ conferencing of 30th April 2015, the majority view was that President Nkurunziza was constitutionally barred from standing for re-election. However, as he tells it, the judges had since then come under ‘enormous pressure and even death threats’ which had resulted in the Court’s capitulation to the will of the CNDD-FDD. 

This brief comment seeks to offer a view regarding the interpretation of Article 96 of the Burundi Constitution, as a modest contribution to the peace and stability of that country.

In this regard, it appears that the 2005 Constitution of Burundi must be read in light of the Arusha Peace and Reconciliation Agreement for Burundi (‘the Arusha Agreement’), a key milestone in ending the long conflict in that country and perhaps the most important inspiration for the letter and spirit of the Constitution. Indeed, in its decision of 5th May, the Constitutional Court acknowledged that ‘[i]n order to understand the spirit of the Constitution, it is useful to first, understand the document which mostly inspired the drafters of the 2005 Constitution.’ The Court also noted that ‘[t]o establish the intention of the drafters, one may examine the documents which inspired the Burundian drafters’ and that it would give ‘special attention’ to the Agreement as ‘a genuine, unavoidable and indispensable document from which the inspiration was drawn by the Burundian Constitution drafters.’ [Emphasis added] In the same vein, the Court acknowledged that the Arusha Agreement, and in particular that part of it relating to constitutional principles, was the ‘Constitution’s bedrock’ and that whoever violated the main constitutional principles of the Arusha could not claim to respect the Burundian Constitution.

It is to the Arusha Agreement, therefore, that we must first turn to in order to find the true meaning of Article 96 of the Burundi Constitution. Under the Preamble of that Agreement, the Parties recorded their awareness ‘of the fact that peace, stability, justice, the rule of law, national reconciliation, unity and development’ were the major aspirations of the people of Burundi’ and further affirmed their commitment to ‘shape a political order and a system of government inspired by the realities of [Burundi] and founded on the values of justice, democracy, good governance, pluralism, respect for the fundamental rights and freedoms of the individual, unity, solidarity, mutual understanding, tolerance and cooperation among the different ethnic groups within [Burundi]’. In terms of Article 1 of the Agreement, the Parties accepted as binding 5 (five) Protocols, which were deemed to form an integral part of the Agreement. These Protocols related to: the nature of the conflict, problems of genocide and exclusion and their solutions (Protocol I); democracy and good governance (Protocol II); peace and security for all (Protocol III); reconstruction and development (Protocol IV) as well as guarantees on the implementation of the Agreement (Protocol V). Protocol II is most directly relevant for our present purposes, as it laid down, in broad strokes, the major terms of what came to be the 2005 Constitution of Burundi. The question of the election of the President was squarely dealt with under Article 7 of this Protocol. In terms of Article 7 (1) (a), the Burundi Constitution was required to provide that save for the very first election of a President, the President of the Republic had to be elected by direct universal suffrage. Under Article 7 (1) (c), for the first election, to be held during the transition period, the President would be indirectly elected as specified in Article 20 (10) of the Protocol. Article 7 (3) further specifically provided that the President would be elected for a term of five years, renewable only once, and that no one could serve more than two presidential terms. Under Article 20 (10) of the Protocol, the first post-transition President would be elected by the National Assembly and Senate sitting together by a majority of two-thirds of the votes. 

Up to the above point, the matter appears relatively straightforward. Both the letter and spirit of the Arusha Agreement appear to categorically reflect the position that a President of Burundi could serve only two terms. In addition, it was quite clear that the agreed position was that while the President had to be elected by universal suffrage, this requirement would not apply to the first Presidential election following the transition, which would be an indirect election. This notwithstanding, for the avoidance of all doubt, this first indirect election would be counted towards the two-term limit, as envisaged by Article 7 (3) of Protocol II.

It is important, as this point, to additionally highlight the terms of Article 3 of the Arusha Agreement, in which the Parties committed themselves to ‘refrain from any act or behaviour contrary to the provisions of the Agreement’, as well as to ‘spare no effort to ensure that the said provisions are respected and implemented in their letter and spirit in order to ensure the attainment of genuine unity, reconciliation, lasting peace, security for all, solid democracy and on equitable sharing of resources in Burundi.’ [Emphasis added]

What, then, is the problem that has led to the death of 18 people and caused displacement of 40,000 others? It seems to be that the letter of the Arusha Agreement was rather inelegantly transposed into the Burundian Constitution. In particular, in the place of the more extended, clearer and ‘tighter’ provisions of Article 7 of Protocol II of the Arusha Agreement, the Burundi Constitution has the one sentence in Article 96 - ‘The President of the Republic is elected by universal direct suffrage for a mandate of five years renewable one time.’  A little more of the letter, and spirit, of the Arusha Accord, is tucked away in Article 302, almost out of sight, appearing towards the end of the Constitution under Title XV of that document, titled ‘Of the particular provisions for the first post-transition period’. According to Article 302, ‘exceptionally, the first President of the Republic of the post-transition period is elected by the [elected] National Assembly and the elected Senate meeting in Congress, with a majority of two-thirds of the members.’ [Emphasis added]

To be sure, Article 7 of Protocol II of the Arusha Agreement reads more clearly than Articles 96 and 302 of the Burundian Constitution. However, does this mean that Article 7 of Protocol II means something other than Articles 96 and 302 of the Constitution? In my opinion, it does not. One of the cardinal rules of constitutional interpretation is that a constitution must be read as an integrated whole, to ascertain its broad purpose and meaning, rather than in a piecemeal fashion which might lead to a result which is inimical to its broader architecture. Perhaps one of the most compelling articulations of this important principle was the statement by Amissah P of the Court of Appeal of Botswana in the 1992 case of Unity Dow v Attorney General: 

[T]he first task of a Court when called upon to construe any of the provisions of the Constitution is to have a sober objective appraisal of the general canvass upon which the details of the constitutional picture are painted. It will be doing violence to the Constitution to take a particular provision and interpret it one way which will destroy or mutilate the whole basis of the Constitution when by a different construction the beauty, cohesion, integrity and healthy development of the State through the Constitution will be maintained … [T]he overriding principle must be an adherence to the general picture presented by the Constitution into which each individual provision must fit in order to maintain in essential details the picture of which the framers could have painted had they been faced with circumstances of today. 

It does seem, applying this important principle, that a reading of Articles 96 and 302 of the Burundian Constitution should lead to the same result as that of Article 7 of Protocol II of the Arusha Agreement. The inelegance of the design of the Constitution aside, Article 302 does refer to the fact that the indirect election of the first President of following the transition was an ‘exceptional’ matter, a reading which, together with Article 96, should lead to the conclusion that President Nkurunziza’s first term, while not under universal suffrage, was indeed a term which must be counted for purposes of the two-term limit under Article 96. Quite simply, under a proper and holistic interpretation of Articles 96 and 302, it is difficult to sustain the argument that President Nkurunziza can lawfully seek re-election in 2015. Moreover, it is even more difficult make this argument if due regard is had to the terms of the Arusha Agreement, which in the Constitutional Court’s own words is the ‘bedrock’ of the Constitution and ‘a genuine, unavoidable and indispensable’ guide to its interpretation.

How then could the Constitutional Court have reached the decision that it did? In the first place, the Court expressly acknowledged that ‘the negotiators [of the Arusha Agreement] indeed wanted to prevent any president serving more than two terms. ’ The Court also noted that a reading of Article 7 of Protocol II ‘clearly shows that the intention of the Arusha Agreement negotiators was to limit the number of terms to two’. The Court then, curiously, observed that ‘that it must be stated that the drafters of the 2005 constitution erroneously interpreted the Arusha Agreement recommendation.’ From this moment on, the Court’s argument appeared to take a strange and rather illogical turn. According to the Court, the location of Article 302 under Title XV of the Constitutional (First Post-Transition Period) and the ‘vagueness’ of the word ‘exceptionally’ under that Article, ‘appears to be independent of Article 96 of the same Constitution thereby creating a completely exceptional and special mandate which is unrelated to Article 96.’ With respect to the Court, it is difficult to see the ‘vagueness’ of the word ‘exceptionally’ as used under Article 302. If anything, read together with Article 96, the word ‘exceptionally’ appears to be a very apt term for the purposes of making it clear that while in principle presidential terms are limited to two and that they must be by universal suffrage, the first term of the post-transition President should be counted as one of the two terms for purposes of Article 96. This is especially so, if indeed, the Arusha Agreement is a ‘genuine, unavoidable and indispensable’ guide to the construction of Articles 96 and 302 of the Constitution. The Court’s additional justification is even more difficult to comprehend. According to the Court, another reason for reading Article 302 as creating a special dispensation, separate from Article 96, was the consideration that ‘the application of Article 302 will also delay limiting the number of presidential terms by universal direct suffrage provided for in Article 96.’ In my view, if anything, it is the failure to properly interprete and apply Article 302 that would delay the application of Article 96, since a reading of the two provisions makes it reasonably clear that the intention from the outset was to limit Presidential terms to two, including in this enumeration the first term of the post-transition President conducted under indirect elections. Perhaps the most unfortunate portion of the decision, and one which perhaps best reflects its logical inconsistency is this:

Considering that as stated above, the spirit and the letter of Arusha Peace and Reconciliation Agreements must be respected and that no president can serve more than two terms, the president elected under Article 302 of the current constitution may renew his term once by universal direct suffrage without violating the Constitution.         

Again, with the utmost respect to the Court, it is very difficult to see how it can at once claim to consider the ‘spirit and letter’ of the Arusha Agreement, which would lead to the inescapable conclusion (as it rightly points out) that ‘no president can serve more than two terms’ and in the same breath conclude that a President elected under the Constitution can actually serve more than two terms. If indeed, as it claims, the Court took issue with the phrasing (or the letter) of the Constitution, then, at the very least, it was the supreme duty of that Court to give effect both to the spirit of that Constitution, as well as to the letter and spirit of the Arusha Agreement, in its capacity as (again to use the Court’s words) ‘the bedrock’ of the Constitution. 

In my view, it is not the drafters of the 2005 Constitution who, as the Court claims ‘erroneously interpreted the Arusha Agreement’. Rather, it is the Constitutional Court which has erroneously interpreted the Burundian Constitution. Indeed, the framers of the Constitution could have made themselves clearer and expressly themselves more articulately. However, in the words of Amissah P noted above, it fell upon the Court to conduct a ‘sober objective appraisal of the general canvass upon which the details of the [Burundian] constitutional picture are painted’. Instead, the Court has smudged that picture and torn that canvass in a way that might destroy the delicate peace established under the Arusha Agreement.

Given the failure of the Constitutional Court in this respect, the solution now appears to lie with the political process at the domestic, regional and international levels, to try and ensure a return to constitutional order and peace in that country. Already there are important indications in this regard, with the United Nations and the African Union both issuing statements calling upon President Nkurunziza to respect the letter and spirit of the Burundian Constitution. The greatest responsibility at this point, however, lies with the President to do the right thing and observe the terms of both the Arusha Agreement and the 2005 Constitution. To do otherwise would be to risk the lives of more Burundians and to push the country even closer to the brink of renewed civil conflict. The President would do very well, in this regard, to heed the wise counsel of outgoing Nigerian President Goodluck Jonathan, who in his concession speech following his loss in the just concluded elections in that country, observed that: 

As I have always affirmed, nobody’s ambition is worth the blood of any Nigerian. The unity, stability and progress of our dear country is more important than anything else. 

In following this counsel, President Nkurunziza would also live up to the letter and spirit of Article 95 of the Burundi Constitution, which establishes a very high burden upon the Head of State in terms of maintain national unity, peace and stability:

The President of the Republic, Head of the State, incarnates the national unity, sees to the respect for the Constitution and assures by his arbitration the continuity of the State and the regular functioning of the institutions.  He is the guarantor of the national independence, of the integrity of the territory and of the respect for the international treaties and agreements.

It is my most sincere hope, that President Nkurunziza, and other well-meaning Burundians, will find it in themselves to remember the long journey and effort that has led up to the relative peace that now prevails in Burundi, and that by their present action, will secure the future of peace, progress and stability envisaged under the 2005 Constitution.