Burundi and Coup Making in the Name of the Constitution
Coups d’état in Africa are of three types: attempted, successful, and alleged. On this basis, Burundi is on record to have had four successful coups d’état: the Captain Micombero-led coup of November 29, 1966 in which hundreds of people lost their lives; the Lt-col. Jean-Baptiste Bagaza-led coup of November 1, 1976 in which there was no blood-letting; the Major Pierre Buyoya-led coup of September 3, 1987; and the army-led coup of July 25, 1996 in which 6000 people died. The reasons given for the four coups are all traced to bad governance, political corruption and ethnic considerations. There was only one alleged coup reported in May 1972.
The third category which is relevant to our discussion here is attempted or failed coup. Burundi has played host to seven of them: the failed coup of October 18, 1965 in which 500 people died; that of March 4, 1992; July 3, 1993; the October 21, 1993 coup led by General Bikomagu François Ngeze and in which 150,000 people were killed; the Tutsi paratroopers’-led coup of April 25, 1994 in which several hundreds of lives were lost; the April 18, 2001 Lt. Paseur Ntatutimanaled coup in which there was no loss of live; and the July 22, 2001failed coup in which only three people died.
The eighth and last attempted coup in Burundi took place on Wednesday, 13th May, 2015. Major General Godefroid Niyombare said in a statement read on Bonesha FM radio, a private radio station, that President Nkurunziza had been fired. The coup took place amidst protests against third term for President Nkurunziza. The protests have led to death of not less than 15 people and 220 casualties. Burundi has had twelve coups d’état in all and also has the highest number of deaths (with not less than 250,000 deaths when compared with other African countries. For instance, Angola has recorded two coups with loss of 200 lives. Ghana with a record of 12 coups only had 126 deaths.
Unlike the previous failed and successful coups, the last coup in Burundi is different and unprecedented from the perspective of the main rationale for the coup, which is the extent to which the quest by the incumbent President, Pierre Nkurunziza’s, can contest the June 2015 presidential election in the country is legal. President Nkurunziza believes he has the legitimate right to contest, more so that the law court has not only ruled in his favour, all the leaders of the Member States of the East African Community (EAC) have also endorsed his candidature, arguing that his candidature does not negate the Constitution of the country which provides for the possibility of a renewable 5-year term for a president elected by popular universal suffrage. The first election of President Nkurunziza was by the Parliament, which the incumbent president considers that should not be counted as a first term. His actual first term, in his eyes, is that of five years ago while the forthcoming June 2015 is his second and final term if elected.
Put differently, one school of thought argues that President Nkurunziza does not breach any law by seeking re-election while another school, particularly the military school, argues that he does not have any right. It is on the basis of this argument that the attempted coup of last Wednesday, 13th May was organized. The issue here is not about the unending street protests in Burundi and Government’s forceful reactions to them, but about the reliance of the coup makers on the Constitution of the land to organize a coup and seek to oust an elected President still in power.
It is a truism to say that all African leaders are all agreed that under no circumstance would they accept the use of force to change government or come to power. Consequently, in their sight, the attempted coup in Burundi cannot but be most unfortunate and unacceptable. However, the reason for the position of the African leaders is to encourage and protect democracy in the continent. Besides, coup makers have always offered reasons of bad governance for seeking a change of power. The last coup in Burundi was organized with the objective of protecting the 2005 Constitution of Burundi and probably not the 2000 Arusha agreement. In this regard, how do we justify the position of the coup makers and the support of several Burundians jubilating when the coup first took place? How do we also explain the constitutional stand of the incumbent president?
Arusha Peace and Reconciliation Agreement
Burundi, for quite a long period, had been in much of political turmoil. The unrest in Burundi is traceable to pre-colonial times. In the pre-colonial period, generally, there was little or no problem of ethnic divide or hostility as all the various ethnic groups owed allegiance to the same monarch ( Umwami). They had a common god (Imana) and also a common culture and language ( Kirundi). However, there were complaints about injustice and frustrations because of some traditional practices such as Ukunena,Ukwihuturu, Ubugerewa, Ugutanga, etc.
In the colonial period, foundations for ethnic cleavages were laid by the colonial powers (German and French). As noted in Article 2 of Protocol 1 of the Arusha Agreement, the colonialists ‘played a decisive role in the heightening of frustrations among the Bahutu, the Batutsi and the Batwa and in the divisions which led to ethnic tensions.’ They also ‘injected and imposed a caricatured, racist vision of Burundian society.’ They ‘introduced an identity card which indicated ethnic origin, thus reinforcing ethnic awareness to the detriment of national awareness’ and also ‘manipulated the existing system to its advantage by resorting to discriminatory practices.’ In fact, as noted in paragraph 6 of Article 2 of the Protocol, ‘on the eve of independence, the colonizer, sensing that its power was threatened, intensified divisionist tactics and orchestrated socio-political struggles.
In the post-colonial era, Burundi became a theatre of ‘massive and deliberate killings, widespread violence and exclusion have taken place during this period.’ In fact, all the signatories to the Arusha agreement recognized that ‘acts of genocide, war crimes and other crimes against humanity have been perpetrated since independence against Tutsi and Hutu ethnic communities in Burundi.’
In an attempt to put an end to the crises and conflict in the country, the Arusha Peace and Reconciliation Agreement for Burundi was negotiated and done on August 28, 2000. The agreement comprised five protocols and annexures. The first protocol defines the nature of the conflict, problems of genocide and exclusion and their solutions. Protocol II was on democracy and good governance. Protocol III is on peace and security for all. Protocol IV dealt with reconstruction and development, while Protocol V provides for guarantees on the implementation of the agreement. In the same vein, the annexures are five in number. They focused on pledge by participating parties; structure of the National Police Force; Ceasefire agreement; Report of Committee IV; and Implementation timetable.
There were 19 stakeholders at the signing ceremony of the agreement. They included the representatives of the Government of the Republic of Burundi, the National Assembly, Alliance Burundo-Africaine pour le Salut (ABASA: Burundo-African Alliance for the Nation), the Conseil National pour la Défense de la Démocratie (CNDD : National Council for the Defence of Democracy), Parti pour le Redressement Nationale (PARENA: Party for National Redress), Parti Indépendant des Travailleurs (PIT : Workers’ Independent Party), Parti pour la Réconciliation du Peuple (PRP : Party for Peoples Reconciliation), Parti Social-Démocrate (PSD : Social-Democratic Party), Ralliement pour la Démocratie et le Développement Economique et Social (RADDES : Rally for Democracy and Economic Development), Rassemblement du Peuple Burundais (RPB: Burundi People’s Rally), and Union pour le Progrès National (UPRONA: Union for National Progress).
Four factors are particularly noteworthy in the understanding of the dynamics of the peace agreement. First, the signatories to the Peace and Reconciliation Agreement are ‘determined to put aside (their) differences in all their manifestations in order to promote the factors that are common to (them) and which unite (them), and to work together for the realization of the higher interests of the people of Burundi.’ In this context, emphasis should be placed on not simply setting aside all their differences but particularly in ‘all their ramifications.’ The rationale for this is explained by the need for the ‘realisation of the higher interests of the people of Burundi.’ Thus, it is the national interest and national unity that are the critical factors underlying the determination to sign the agreement.
Secondly, the signatories considered that what the good people of Burundi wanted was simply ‘peace, stability, justice, the rule of law, national reconciliation, unity and development.’ Thirdly, the signatories wanted to ‘put an end to the root causes underlying the recurrent state of violence, bloodshed, insecurity, political instability, genocide and exclusion which is inflicting severe hardships and suffering on the people of Burundi and seriously hampers the prospects for economic development and the attainment of equality and social justice’ in Burundi.’ This determination is simply about enabling a peaceable environment in order to give room for economic development. Fourthly, the signatories wanted to sustain a system of government that could be predicated on values of justice, democracy, good governance, pluralism, respect for the fundamental rights and freedoms of the individual, mutual understanding, tolerance and cooperation among the different ethnic groups in Burundi.
What is important about the Arusha agreement is that it not only provides that any stakeholder who had not signed the Arusha agreement and who engages in belligerency and is invited to jettison violence but refuses to do so, is considered to be launching attacks on all the signatories to the Arusha agreement. As provided in Article 2, paragraph 3 of the agreement, ‘in the event of belligerent parties spurning or refusing such an invitation and continuing their belligerent activities against the people of Burundi, or any section of them, the violent acts of such parties will be deemed to constitute an attack on all the parties comprising this national platform of the Burundian people…’ The implication of this is clear. Any stakeholder that does not have the same stand with all the signatories of the Arusha agreement constitutes an enemy that should be fought.
And perhaps most importantly, Chapter II of Protocol II on Transitional Arrangements provides in its Article 12 on objectives that ‘exceptional and special arrangements concerning the government of Burundi shall be made pending the adoption and entry into force of a Constitution that is in conformity with the constitutional principles set forth in Chapter 1 of the… Protocol.’ Article 13, paragraph 2 says ‘the transition shall culminate upon the election of the new President. The presidential election shall take place after the first democratic election of the National Assembly. Both elections shall take place within 30 months of the commencement of the transition period.’ Additionally, Article 15 (12) says that ‘the first transitional President and VicePresident of the Republic shall come from different ethnic groups and political parties. In the event of the death or incapacity of either of them, the new transitional President or Vice-President of the Republic shall be elected by the transitional National Assembly by a resolution which receives the support of two-thirds of the members.’ It is within this framework that President Nkurunziza was first elected by the National Assembly and that the election would not be consistent with the provisions of the Constitution which provides for the election of the President of Burundi through popular universal suffrage.
As good as these objectives are, the provisions of the agreement in the area of election of the leader are the major sources of the controversy and unnecessary violence with which the people of Burundi are currently faced.
Constitution of 2005 and Third Term Controversy
Burundi’s Constitution provides in itsArticle 102 that ‘l’élection du Président de la République a lieu au scrutin uninominal à deux tours. Le Président de la République est élu à la majorité absolue des suffrages exprimés. Si celle-ci n’est pas obtenue au premier tour, il est proc édé, dans un délai de quinze jours, à un second tour.’ Explained differently, the President of the Republic is elected by universal suffrage in either one round or two-round election. In the first round, the President must be elected on the basis of absolute majority but where it is not possible, a second round of election must be organized within the following fifteen days.As theArticle further provides, ‘seuls peuvent se présenter au second tour du scrutin les deux candidats qui ont recueilli le plus grand nombre de suffrages au premier tour.’ In other words, only the two candidates that obtained the highest votes in the first round of election can go to the second round.Additionally, where a candidate withdraws for whatever reason, the next candidate as classified in the first round of election results takes the vacant position. This is the principle of ‘ désistement’ in the French electoral law.
Thus, it is very clear that election of the President by the National Assembly as provided in the 2000Arusha Peace Protocols and election of the President by universal suffrage in the Constitution of Burundi are not the same. If we disregard how or by which method the incumbent President has been elected, he has done already two-term of five years each, and therefore, he cannot contest legally. If we do reckon with it, the law court and the EAC leaders supporting President Nkurunziza cannot but be correct.
The dilemma for theAfrican Union is what to uphold: if a group of persons, be they soldiers or ordinary civilians, decide to defend the Constitution of the their country by use of force, will it be wrong to use force? If it is wrong, will it be right for President Nkurunziza to seek a third term in light of the background analysis on the reasons that led to the signing of theArusha accords? Why is theAU unable to prevent the coup in Burundi? Without doubt, non-acceptance of forceful change of government by theAU will require a review in order to limit it to assaults on democracy. If anyone opts to take arms in order to defend the supreme law of the land or seek to enforce compliance with contracted obligations ofArusha Protocols, in the spirit of sanctity of agreements, there is nothing wrong. The situation we have in Burundi is one in which the incumbent president and the coup makers are both right and are also both wrong. They are both right in their references toArusha accords and the Constitutions. They are both wrong in the use of force to register their position. This is one major reason whyAfrica has not known peace and why peace cannot but remain far-fetched. Cases like this have nothing to do with the former colonialists. If they were responsible for pre-independence problems, they may not again be held responsible again forAfrica’s political recklessness.African leaders need to wake up and be more serious.