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The East African : May 31st 2015
8 THE BURUNDI CRISIS No constitutional c≥isis: The co≥e issues a≥e social, political and economic In their ruling, the Justices COMMENTARY CHARLES KM KAMBANDA “The Arusha agreement remains a living inspiration for Burundians because it was the cornerstone for ending the protracted ethnic war.” another term, after 10 years in office. Supporters of the presi- B dent’s new bid for the top job are convinced that the Republic of Burundi 2005 Constitution does not bar the president from running again. On the other hand, oppo- sition leaders argue that the spirit and letter of the Arusha Agreement, read together with what they call vague presidential term limits in the Constitution, bars the president from running for another term. Article 96 of the Burundi 2005 Constitution provides that “the president of the republic is elected by universal suffrage for a mandate of five years renewable one time.” The president has held office for 10 years now. Burundi’s opposition leaders and political activists insist that the president is ineligible for another term. The president and his sup- porters contend that the president has been in office for 10 years. 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. The Arusha Agreement The Arusha Agreement adopted five protocols. The pertinent protocol, for purposes of presidential terms limits, is democracy and good governance (Protocol 11). Article 7 (1) (a) of the Protocol on democracy and good governance provides that: “the [subsequent] Constitution shall provide that, save for the first urundi’s current deadlock arises from the president’s determination to run for election of a president, the president shall be elected by direct universal suffrage” Article 7 (1) (c) prescribed that the National Assembly would elect the first posttransition president through Article 20 (10) procedure. Article 7 (3) prescribes that the constitution shall provide that the president is elected for a term of five years renewable only once. The framers of Article 96 adopted Articles 7(1) (a) and 7 (3) of the Arusha Agreement without adopting Article 7(1) (c). However, Article 302 provides that “Exceptionally, the first President of the Republic of the post-transition period is elected by the [elected] National Assembly and the 2005 of Constitutional Court reasoned that “to understand the spirit of the Constitution, it is useful to first understand the document which mostly inspired the drafters of the 2005 Constitution.” Burundi’s Constitutional Court Justices argued that the Arusha Agreement is a genuine, unavoidable, inspiring and indispensable document. In effect, the Constitutional Court argued that the Arusha Agreement is Burundi’s 2005 Constitution bedrock. The Justices conclusion about the status and role of the Arusha Agreement in Burundi post-conflict law is revealing. 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. It appears the Justices The year the Burundi Constitution was promulgated elected Senate meeting in Congress; with a majority of two-thirds of the members.” The president elected for the first post-transition period may not dissolve the Parliament. Appreciation of the root cause of the current crisis in Burundi requires addressing issues such as: whether or not the Arusha Agreement is a legal instrument in Burundi. It’s paramount to determine whether or not a set of moral or social principles that inspired the framers of a Constitution can be used to alter the letter of the same Constitution. Whether or not the Arusha Agreement was an ordinary agreement/contract between the parties that terminated by its terms. It is imperative to determine whether or not Article 302 is an exception to, or complements Article 96 of Burundi’s Constitution. were rightly convinced that although the Arusha agreement inspired the framers of the Constitution, like any other landmark event and/or agreement in Burundi’s history, the black and white letter of Burundi’s Constitution prevails. The Justices appear to agree that Title XV of the 2005 Burundi Constitution created a special transitional presidency which the framers of the constitution, clearly, did not intend to count for purposes of Article 96 term limit. 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. There was an offer, acceptance, consideration and there were no defences for any party against the Arusha Agreement. There were specific things each party had to perform within a specific time frame. To this effect, Protocol V, Article 3 (1) created the Implementation Monitoring Committee to: “(a) Follow up, monitor, supervise, coordinate and ensure the ef- Soldiers hold off protesters during a demonstration against President Pierre Nkurunziza’s bid for a third term in Bujumbura. Picture: File fective implementation of all the provisions of the agreement; (b) Ensure that the implementation timetable is respected; (c) ensure the accurate interpretation of the agreement; (d) Reconcile points of view (f) give guidance to and co-ordinate the activities of all commissions and sub-commissions set up for the purpose of implementing the agreement, (g) Assist and support the transitional government in its diplomatic mobilisation of financial, material, technical and human resources required for the implementation of the Agreement.” On August 8 and 9, 2005, the Implementation Monitoring Committee held its last meeting. The committee reported to the UN Secretary General that the Agreement had been fully implemented. The UN Secretary Gen- eral then reported to the UN Security Council that the Arusha Agreement had been implemented. Therefore, the Arusha agreement, like any other ordinary agreement/ contract, terminated naturally, by its termination clause. 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 offer, acceptance, consideration and absence of defences. It is erroneous to evoke the terms of the Arusha Agreement after its natural termination. The spirit of the agreement may be morally binding for ages. However, governments en- force written laws, not morality. It follows that while the Burundian government must enforce the law, including the Constitution, it may reasonably not be expected to enforce moral principles. Burundi’s Constitutional Court Justices rightly observed that the Arusha agreement remains a living inspiration for Burundians because it was the cornerstone for ending the bloody protracted ethnic war. Jurists agree that specific events, life experience or re- alities inspire each statute or law. However, the events, life experience that inspire a given Statute do not, by themselves, become law. It is a settled statutory and or constitutional interpretation principle that in order to understand an ambiguous or unclear term or provision of the law, it’s imperative to understand what the framers of that statute or constitution intended. Where the law is clear, as it is the case with Burundi’s Constitution on Presidential terms, reading the law, not The EastAfrican NEWS MAY 30 - JUNE 5, 2015 Women sell fruits and vegetables on a street in Bujumbura. Burundi’s fertility rate is said to be high. Picture: File ISSUES AT STAKE The booming illegal business in DRC has attracted first class multinational companies into that region. Each of these multinational companies wants to influence politics and politicians in Burundi for “favours.” Burundi has six per cent of world’s unexploited Nickel deposits. A firm that is affiliated to Russia recently “won” the tender to mine Nickel in Burundi. With the cold war reactivated, Burundi is probably a new cold war battle ground, US government declared position notwithstanding. Burundi is up for grabs in the balance of power system.
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